A  TREATISE  ON  THE  RIGHTS 
AND  PRIVILEGES  GUARANTEED 
BY  THE  FOURTEENTH  AMEND- 
MENT TO  THE  CONSTITUTION 
OF  THE  UNITED  STATES.: 


BY 


HENRY    BRANNON 

(JUDGE  OF  THE  SUPREME  COURT 
OF  WEST  VIRGINIA.) 


CINCINNATI 

W.  H.  ANDERSON   &   CO. 
1901. 


1901 

COPYRIGHT. 

W.    H.    ANDERSON    &    CO. 


GENERAL 


PREFACE. 


As  the  author  has  observed  through  many  years,  it  is 
almost  daily,  in  the  federal  and  state  courts,  that  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States  is  appealed  to.  All  those,  whether  citizens  or  deni- 
zens, who  are,  or  allege  themselves  to  be,  unjustly  affected 
in  the  great  rights  and  privileges  and  immunities  of  citi- 
zenship, life,  liberty,  property  or  equality,  invoke  that 
Amendment  for  their  safety  and  shield  against  the  action 
of  officers  and  courts  under,  state  authority,  and  against 
federal  governmental  authority  as  forbidden  by  like  prin- 
ciples found  in  the  Fifth  Amendment.  More  particularly 
is  this  so  where  those  cardinal  rights  are  prejudiced  by 
the  exercise  of  public  authority  by  the  tribunals  or  officers 
of  the  states,  or  their  municipalities;  then  the  federal 
courts  are  called  upon  to  assert  their  jurisdiction  for  the 
vindication  of  those  rights  guaranteed  against  state  in- 
fraction by  the  Fourteenth  Amendment.  The  supreme 
importance  of  that  Amendment,  from  its  presence  in  the 
federal  Constitution,  with  its  paramount  obligation,  is  at 

iii 


102008 


IV  PREFACE. 

once  evident  in  theory  and  practice.  This  importance  is 
not  waning,  but  growing.  Cases  under  it  encumber  the 
dockets  of  our  courts.  Under  these  circumstances  it  oc- 
curred to  the  author  that  a  work  issuing  thirty-three  years 
after  the  adoption  of  that  Amendment,  giving  decisions 
upon  it  of  the  United  States  Supreme  Court  and  other 
national  and  state  courts  down  to  February,  1901,  would 
be  of  practical  value. 

The  Fourteenth  Amendment  is,  to  a  limited  extent, 
discussed  in  works  upon  general  constitutional  law;  but 
there  is  no  work  specially  devoted  to  it  and  the  decisions 
construing  and  applying  it.  As  its  title  will  suggest,  the 
volume  is  not  one  covering  the  whole  compass  of  constitu- 
tional law.  It  is  confined  to  the  Fourteenth  Amendment ; 
but  it  incidentally  touches  kindred  subjects,  such  as  the 
provisions  of  the  national  Constitution  as  to  interstate 
commerce,  and  against  impairment  of  contracts  by  state 
legislation.  It  deals  only  with  the  first  and  fifth  sections 
of  the  Amendment,  as  its  other  sections  concern  matters 
having  no  relevancy  to  those  of  the  first  and  fifth  sections, 
since  those  other  sections  concern  representation  in  the 
Congress,  eligibility  to  office  and  public  debts.  But  the 
sections  which  are  discussed  embrace  a  wide  and  spacious 
field.  It  includes  Eights,  Privileges,  and  Immunities  of 
Federal  Citizenship,  Naturalization,  Life,  Liberty,  Prop 


PREFACE.  V 

crty  and  Equal  Protection  of  the  Laws;  Due  Process  of 
Law;  the  relations  and  respective  powers  of  the  nation 
and  states  under  the  Fourteenth  Amendment ;  the  relative 
functions  of  national  and  state  courts;  the  force  and 
effect  of  state  decisions  in  federal  courts ;  the  jurisdiction 
of  the  Supreme  Court  of  the  United  States  over  the  su- 
preme courts  of  the  states  for  the  enforcement  of  that 
Amendment ;  the  powers  of  federal  courts  over  state  courts 
by  removal  of  causes  and  habeas  corpus  to  enforce  the 
Amendment;  the  effect  of  overruled  state  cases  in  federal 
courts ;  the  powers  of  the  states  as  to  police,  taxation  and 
eminent  domain,  as  affected  by  the  Fourteenth  Amend- 
ment, and  the  right  of  restraint  by  the  nation  over  the 
states  therein :  the  restrictions  that  may  be  imposed  upon 
monopolies  and  trusts  and  combinations;  the  power  to  re- 
strain by  injunction  strikes  and  boycotts,  called  "govern- 
ment by  injunction" ;  the  subject  of  exclusive  charters 
and  grants  by  states  and  municipalities  as  fostering  mo- 
nopolies, and  how  far  such  charters  and  grants  are  con- 
tracts inviolable;  the  rights  of  naturalization  and  expa- 
triation; the  power  of  the  United  States  to  acquire,  hold 
and  govern  foreign  territory,  and  under  what  principles 
such  government  must  be — whether  "the  constitution  fol- 
lows the  flag"  into  such  territory  when  acquired;  and 
many  other  incidental  and  cognate  subjects. 


VI  PREFACE. 

It  is  hoped,  as  it  has  been  the  author's  intention,  that 
the  letter  and  spirit  of  the  book  are  broad  and  national, 
wholly  unsectional,  inculcating  in  the  breasts  of  the  people 
patriotic  love  and  devotion  to  both  the  Union  and  the 
States,  teaching  the  just  rights  of  both,  and  impressing 
that  the  one  can  not  exist  without  the  others  and  accom- 
plish the  manifest  destiny  which  our  fathers  foresaw,  and 
answer  the  grand  behests  of  free  republican  government — 
Liberty  under  Law,  Happiness,  Peace,  Progress,  Civiliza- 
tion and  National  Greatness. 

In  the  preparation  of  the  work  I  have  received  great 
and  valuable  assistance  from  my  son  Edward  A.  Brannon. 

HENRY  BRANNON. 
Weston,  W.  Va.,  February,  1901. 


CONTENTS. 


Page. 
Introduction 1 


CHAPTER  I. 
Fourteenth  Amendment 


CHAPTER  II. 
^Citizenship  ...............................................     17 

CHAPTER  III. 
Acquisition  of  Territory  ....................................     35 


CHAPTER  IV. 
Privileges   and   Immunities 


CHAPTER  V. 
United  States  Supreme  Court  Decides  Finally  ................        49 


CHAPTER  VI. 

Privileges  and  Immunities.     What  Protected?, 


CHAPTER  VII. 

Life.  Liberty,  Property,  Equal  Protection  of  Law 97 

iiv 


vni  CONTENTS. 

Page. 
CHAPTER  VIII. 

Life 107 

CHAPTER  IX. 
Liberty 109 

CHAPTER  X. 
Property 118 

CHAPTER  XL 
Due  Process  of  Law 138 

CHAPTER  XII. 
Police  Power  of  States 167 

CHAPTER  XIII. 
Judgment  Without  Service  of  Process 244 

CHAPTER  XIV. 
Business   Licenses 298 

CHAPTER  XV. 
Taxation 302 

CHAPTER  XVI. 
Equal  Protection  of  the  Law 315 

CHAPTER  XVII. 
Relations  of  States  and  Nation .    331 


CONTENTS.  ix 

Page. 
CHAPTER  XVIII. 

State  Decisions — How  Far  They  Control  Federal  Courts 395 

CHAPTER  XIX. 
Federal  Processes  to  Enforce  Amendment 420 

CHAPTER  XX. 
Habeas  Corpus 432 

CHAPTER  XXI. 
Congressional  Intervention 449 

CHAPTER  XXII. 
Eminent  Domain 464 

CHAPTER  XXIII. 
Government  by  Injunction 471 

CHAPTER  XXIV. 
Interstate  Commerce 475 


INTRODUCTION. 


N  TO  apology  is  needed  for  offering  to  the  public  a  work 
on  The  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States,  the  most  important  of  all  the  addi- 
tions made  to  that  great  instrument.  That  amendment 
speaks  principles  of  free  government  of  overruling  import. 
True,  these  principles  are  not  new ;  they  are  but  the  prin- 
ciples of  Magna  Charta.  They  had  already  been  incor- 
porated into  the  constitutions  of  the  states  before  the 
advent  of  that  amendment;  and  they  had  been  put  into 
the  federal  Constitution  by  the  Fifth  Amendment;  but 
that  amendment  restrains  the  powers  of  the  national 
government  only,  and  until  the  Fourteenth  Amendment 
came  there  was  no  power  in  the  Nation  to  coerce  the  states 
to  grant  and  observe  the  rights  of  Magna  Charta  to  their 
people ;  the  states  could  grant  or  deny  them.  The  supreme 
importance  of  the  Fourteenth  Amendment  thus  lies  in  the 
fact  that  it  does  compel  the  states  to  concede  those  rights, 
else  the  national  power  can  be  invoked  to  coerce  their  con- 
cession. The  Fourteenth  Amendment  thus  wrought  won- 
derful change  in  the  governmental  relations  between  states 
and  nation,  we  may  say  in  the  governmental  fabric  almost ; 
it  vastly  increased  the  national  .power  over  a  large  field, 
and  correspondingly  decreased  the  sovereign  or  final  power 

1 


2  INTRODUCTION. 

of  the  states.  It  is  this  fact,  not  simply  the  principles 
themselves  of  the  amendment,  that  causes  it  to  mark  a  new 
era,  a  new  departure,  in  American  government.  It  can  not 
be  too  well  understood  or  discussed.  To  show  its  vast  prac- 
tical importance  we  need  only  turn  to  the  index  head 
"Constitutional  Law"  in  the  reports  of  federal  and  state 
courts  and  see  how  those  courts  are  burdened  with  cases 
involving  that  amendment.  More  and  more  every  year 
that  amendment  is  invoked  in  state  courts,  and  more  still 
in  federal  courts,  to  challenge  the  action  of  state  govern- 
ments. The  reports  teem  with  cases  upon  it.  The  present 
work  treats  of  that  amendment  as  it  bears  upon  National 
Citizenship,  Naturalization,  Privileges  and  Immunities 
of  Citizens  of  the  Republic,  Life,  Liberty,  Property,  Equal 
Protection  of  the  Law  as  affected  by  unwarranted  State 
Action,  Due  Process  of  Law,  Police  Power,  Taxation, 
Eminent  Domain,  and  kindred  subjects.  I  have  en- 
deavored to  refer  to  the  main  decisions  upon  the  amend- 
ment, state  and  federal,  particularly  those  of  the  Supreme 
Court  of  the  United  States,  as  its  jurisdiction  is  final  in 
such  cases.  It  will  be  seen  that  much  of  the  work  is 
literal  quotation  from  the  opinions  of  the  courts.  I  have 
purposely  adopted  this  course,  preferring  to  give  the  de- 
liverances of  the  courts  themselves  in  their  own  words, 
rather  than  a  construction  or  version  of  my  own. 

The  following  pages  will  fully  sustain  the  statement 
that  the  Fourteenth  Amendment  has  vastly  widened  the 
powers  of  the  Nation  over  the  States.  It  has  "centralized" 
the  government,  to  use  the  expression  of  those  who,  in  the 
formation  of  the  Constitution  and  in  the  many  and  con- 
tinuous subsequent  contestations  upon  its  construction,  op- 


INTRODUCTION.  5 

ta  i  The  only  question  is,  or  was,  whether  their  concession 
should  be  left  to  the  states  ultimately  and  finally,  or  their 
guaranty  and  vindication  be  left  ultimately  and  finally 
to  the  nation,  as  under  the  Fourteenth  Amendment.  That 
question  is  not  before  us ;  the  adoption  of  that  amendment 
has  relegated  that  question  to  the  past.  The  amendment  is 
here.  It  has  been  with  us  for  thirty-two  years ;  a  genera- 
tion has  not  seen  it  mar  the  harmony  of  the  nation  and 
the  states.  The  Supreme  Court  has  applied  it  with  such 
even,  impartial  and  temperate  hand,  between  States  and 
Xation,  that  no  collision  has  occurred.  May  it  be  ever 
so.  The  states  are  not  aliens  and  enemies  of  the  nation; 
the  nation  not  alien  and  enemy  of  the  states.  We  are 
all  one  in  the  procession  of  time  and  progress.  What 
matters  it  by  which  government  the  powers  of  administra- 
tion happen  in  distribution  to  be  exercised,  so  they  are 
administered  "by  the  people,  through  the  people  and  for 
the  people  ?" 


RIGHTS  AND  PRIVILEGES  UNDER  THE 
FOURTEENTH  AMENDMENT. 


Chapter  I. 


FOURTEENTH   AMENDMENT. 

"SECTION  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  state  wherein 
they  reside.  Xo  state  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  cit- 
izens of  the  United  States,  nor  shall  any  State  deprive 
any  person  of  life,  liberty  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  juris-  ^ 
diction  the  equal  protection  of  the  laws." 

"SECTION  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article." 

We  can  not  conceive  of  principles  of  constitutional  law 
more  important  and  grave,  especially  as  part  of  the  Con- 
stitution of  the  United  States,  than  those  embodied  in  the 

above  sections  of- its  Fourteenth  Amendment,  both  because 

7 


8  RIGHTS    AND    PRIVILEGES    UNDER 

they  are  a  direct  guaranty  and  assurance  by  the  federal 
government  of  the  greatest  rights  to  citizens  and  persons, 
and  because  they  deeply  concern  the  relation  of  the  na- 
tion to  the  states,  and  may  produce  the  most  perilous 
conflict  and  clash  between  them.  These  principles  are 
in  themselves  old,  dating  from  Magna  Charta,  granted  by 
King  John  in  1215,  and  found  in  all  the  American  state 
constitutions;  but  it  was  left  to  the  states  to  vindicate 
them — -the  states  were  supreme  as  to  them — and  never, 
until  the  28th  of  July,  1868,  when  this  amendment  went 
into  force,  did  the  federal  government  undertake  the 
guaranty  of  the  rights  contained  in  it.  True,  the  Fifth 
Amendment  does  say  that  no  person  shall  abe  deprived 
of  life,  liberty  or  property  without  due  process  of  law"; 
but  this  operates  only  on  the  national  government,  not 
on  the  states.  It  is  exclusively  the  Magna  Charta  re- 
straining the  federal  government.1 

Whether  we  test  the  matter  by  the  rigid  construction 
of  the  federal  constitution  given  it  by  that  school  claim- 
ing the  largest  right  for  the  states,  or  by  the  school  giving 
a  more  liberal  construction  in  favor  of  the  federal  gov- 
ernment, or  even  of  a  third  class,  which  may  be  called 
the  school  of  latitudinarians,  in  favor  of  the  power  of  the 
federal  government;  whether  we  follow  Calhoun,  Mad- 
ison, Jefferson,  Stephens  and  Davis,  or  Washington,  Ham- 
ilton, Story,  Marshall,  Kent  and  Webster,  the  United 
States  possessed  no  such  power  of  restraint  upon  the  gov- 
ernmental action  of  the  States  as  that  conferred  by  the 
Fourteenth  Amendment.  We  can  not  say  that  it  is  an 

i  Spies  v.  Illinois,  123  U.  S.  166. 


TEE     FOURTEENTH     AMENDMENT.  9 

invasion2  of  the  rights  of  the  States,  because  it  was 
adopted  by  them;  but  a  change,  a  vast  innovation  upon 
the  former  law,  it  plainly  is.  As  Justice  Swayne  said 
in  the  Slaughter  House  Cases,3  it  "trenches  directly  upon 
the  power  of  the  states,  and  deeply  affects  those  bodies." 
We  can  not  under  it  ask  the  question,  Where  is  the  divid- 
ing line  between  state  and  national  power?  as  in  other 
cases  we  may;  for  there  is  no  dividing  line.  The  ques- 
tion in  a  case  is,  Has  the  State  gone  beyond  its  powers? 
Has  it  deprived  one  of  privilege,  immunity,  life,  liberty 
or  property  without  due  process,  or  deprived  him  of  the 
equal  protection  of  the  laws  ?  Has  it  withheld  from  him 
what  its  own  law  properly  applied  would  assure  to  him? 
The  rights  thus  guaranteed  by  the  national  government 
are  obviously  just  rights,  those  which  ought  to  be  ac- 
corded by  every  free  government,  and  can  not  be  too 
firmly  secured.  All  admitted  this  when  the  amendment 
was  being  debated ;  but  the  question  at  issue  was  whether 
the  guaranty  should  be  left  exclusively  to  the  states  or 
to  the  nation  also.  The  proposition  of  its  adoption  elic- 
ited great  acrimony  and  difference  of  opinion  as  to  its 
necessity  and  expediency.  Mr.  Pomeroy,  writing  while 
it  was  in  debate,  considered  it  the  most  important  of  all 
the  amendments,  except  only  the  Thirteenth.  He  said: 
"It  would  give  the  nation  complete  power  to  protect  its 
citizens  against  local  injustice  and  oppression,  a  power 
which  it  does  not  now  adequately  possess,  but  which,  be- 
yond all  doubt,  should  be  conferred  upon  it.  Nor  would 
it  interfere  with  any  of  the  rights,  privileges  and  func- 

2  Ex  parte  Va.  100  U.  S.  346. 
a  16  Wall.   125. 


10  RIGHTS    AND    PRIVILEGES    UNDER 

tions  which .  properly  belong  to  the  states."  He  thought 
that,  as  the  Constitution  had  from  its  origin  prohibited 
the  states  from  passing  attainders,  ex  post  facto  laws  and 
laws  impairing  the  obligations  of  contracts,  it  was  strange 
it  had  omitted  to  protect,  from  its  beginning,  life,  liberty 
and  property  against  adverse  state  action  by  the  require- 
ment of  due  process. 

In  the  view  of  many  of  its  advocates  this  amendment 
may  be  appropriately  called,  not  Magna  Charta,  but  Max- 
ima Charta,  since  it  not  only  guarantees  great  cardinal 
rights  essential  to  life,  liberty,  property  and  happiness, 
but  gives  their  ample  defense  into  the  hands  of  the  Great 
Kepublic  wherever  assailed,  and  thus  enables  the  Amer- 
ican citizen  when  in  peril  to  say  "I  am  an  American  cit- 
izen" as  the  segis  of  his  safety,  just  as  Cicero  said  a 
Roman  citizen  might  save  himself  anywhere  within  the 
bounds  of  the  Roman  Republic  or  its  colonies  or  depen- 
dencies by  the  plea  "Sum  Romanus  civis" 

In  the  discussion  of  this  amendment  it  was  argued  that 
the  fundamental  rights  protected  by  it  ought  to  be  de- 
fended in  one  state  as  in  another  throughout  the  repub- 
lic, and  that  the  republic  should  possess  this  corrective, 
defensive  power.  On  the  other  side,  it  was  argued  that  if 
a  state  is  a  government  with  any  sovereign  rights  it  should 
have  power  to  pass  finally  upon  even  the  life,  liberty  and 
property  of  its  citizens,  else  it  would  be  practically  no 
government  with  such  essential  powers  lopped  off.  The 
early  amendments  betray  a  fear  then  existing  of  inordi- 
nate power  in  the  nation.  This  one  evinces  the  opposite 
fear,  that  of  too  little  power  in  the  Nation  and  the  vio- 
lation of  the  rights  of  person  by  the  states.  The  oppo- 


TUB    FOURTEENTH     AMENDMENT.  H 

nents  of  this  amendment  contended  that  it  was  a  danger- 
ous enlargement  of  national  power  and  limitation  of 
state  power  in  most  vital  respects ;  that  it  would  be  wrong 
to  commit  to  the  federal  government,  in  addition  to  the 
power  which  it  already  had  to  restrain  the  states  from 
passing  attainders,  ex  post  facto  laws  or  laws  impairing 
the  obligations  of  contracts,  the  further  extension  of 
power  to  restrain  the  states  in  the  many  additional  func- 
tions as  proposed  in  the  amendment;  that  it  proposed 
federal  jurisdiction  in  most  vital  matters  theretofore 
left  with  the  states — bore  on  their  action  as  to  privileges, 
immunities,  life,  liberty,  property  and  equality  before 
the  law,  detracted  from  the  sovereignty  and  dignity  of  the 
states,  subordinated  them  to  the  federal  government  in 
a  vastly  wider  field  than  before,  centralized  the  federal 
power,  giving  it  a  chart  of  power  whose  domain,  under 
liberal  or  free  interpretation,  could  not  be  even  surmised 
in  advance.  They  said  that  it  did  not  follow  that  because 
the  power  had  been  given  to  restrain  the  states  from  at- 
tainders, ex  post  facto  laws  and  the  impairment  of  con- 
tracts, it  was  necessary  to  deprive  the  states  of  the  right 
in  their  administration  of  government  to  pass  final  judg- 
ment upon  the  rights  of  their  citizens  and  give  super- 
vision of  such  matters  to  the  nation.  The  actual  enlarge- 
ment of  federal  control  given  by  this  amendment  by  even 
conservative  construction  is  unquestionably  great.4  When 
w»-  reflect  how  large  a  part  of  state  governmental  action 
bears  upon  privileges,  immunities,  life,  liberty,  property 
and  equality  before  the  law,  and  add  the  prohibition 

*  Reno  on  Non-Residence,   §237. 


12  RIGHTS    AND    PRIVILEGES    UNDER 

against  attainders,  ex  post  facto  laws  and  laws  impairing 
the  obligation  of  contracts,  in  all  of  which  the  federal 
government  has  now  a  final  voice,  we  see  how  large  a  part 
of  state  administration  is  committed,  in  the  last  resort,  to 
federal  control  and  supervision.  Many  cases  in  federal 
and  state  courts  will  attest  this.  The  extension  of  fed- 
eral jurisdiction  which  has  been  claimed  under  this 
amendment,  and  will  continue  to  be  claimed,  is  shown  by 
Justice  Miller  in  Davidson  v.  ^ew  Orleans,  saying  that 
the  Fifth  Amendment,  restraining  federal  authority  with- 
out due  process,  though  nearly  a  century  old,  had  scarcely 
ever  been  invoked  in  the  federal  courts,  whereas  the 
Fourteenth  Amendment  had  filled  the  docket  of  the  Su- 
preme Court  with  cases  seeking  in  that  court  to  overthrow 
judgments  and  legislation  of  states,  and  that  there  ex- 
isted aa  strange  misconception  of  the  scope"  of  the  amend- 
ment, and  that  it  seemed  that  every  unsuccessful  litigant 
in  a  state  court  had  appealed  to  it  to  bring  his  abstract 
opinions  of  the  justice  of  state  decisions  and  legislation 
before  the  Supreme  Court.  He  condemned  such  a  con- 
struction of  the  amendment,  it  is  true,  but  his  remarks 
show  the  latitudinous  construction  placed  by  many  upon 
this  amendment.5  "The  Fourteenth  Amendment  did  not 
radically  change  the  whole  theory  of  the  relations  of  the 
state  and  federal  governments  to  each  other  and  of  both 
governments  to  the  people,"  said  Fuller,  Ch.  J.6 

Any  discussion  of  the  expediency  of  the  adoption  of 
the  Fourtenth  Amendment  is  now  irrelevant,  because  a 
dead  issue.  The  amendment  is  a  part  of  the  Constitu- 

596  U.  S.  97. 

e/n  re  Kemler,  136  U.  S.  436. 


THE     FOURTEENTH     AMENDMENT.  13 

tion.  Though  its  principles  are  antagonistic  to  the  opin- 
ions of  men  of  all  shades  of  opinion  who  took  part  in  the 
formation  of  the  original  Constitution,  it  has  likely  come 
to  stay.  Whether  the  change  shall  prove  a  blessing  or  a 
misfortune;  whether  it  shall  operate,  as  it  was  intended, 
to  further  assure  the  essential  and  imprescriptible  rights 
of  the  citizen,  or  be  the  source  of  friction  and  clash  be- 
tween nation  and  states,  which  will  mar  the  harmony 
of  our  wise  dual  system  of  government,  remains  for  the 
future  to  reveal.  Large  responsibility  here  rests  with  the 
federal  government,  particularly  its  judiciary.  So  far, 
that  exalted  and  impartial  tribunal,  the  Supreme  Court 
of  the  United  States,  has  so  temperately  construed  and 
applied  the  amendment  that  no  bane  has  resulted  from  it. 
The  claim  for  excess  of  federal  intervention  has  hitherto 
been  defeated  by  the  ability  and  moderation  of  that  il- 
lustrious court;  but  what  dangers  may  lurk  within  the 
amendment  and  find  success  in  changing  time  and  cir- 
cumstances we  can  not  now  foresee.  Still,  we  may  rea- 
sonably say  that  the  great  precedents  and  bounds  already 
set  by  that  court  will  reduce  these  dangers  to  a  minimum. 
The  author  humbly  ventures  to  say  that  for  the  harmony 
of  the  Union,  The  Ship  of  State,  with  which  go  "our 
hearts,  our  hopes,  our  prayers,  our  tears,  our  faith  trium- 
phant o'er  our  fears,"  the  federal  judiciary  should  use 
this  grant  of  power  with  caution  and  prudence,  resolving 
all  doubt  that  is  reasonable  in  favor  of  the  validity  of 
state  action. 

The  past  has  brought  no  harm  from  it,  but,  in  the  lan- 
guage of  Cicero,  "Tempora  mutantur  et  mutamus  in  illis." 
Other  presidents  and  judges  will  come  to  sit  in  the  chairs. 


14  RIGHTS    AND    PRIVILEGES    UNDER 

Every  patriot  will  trust  that  this  amendment  will  not, 
like  Dead  Sea  fruit,  turn  to  bitter  ashes  on  the  lips,  or 
be  the  box  of  Pandora,  giving  forth  innumerable  serpents 
to  sting ;  but  that,  it  may  be  a  cornucopia  of  freedom  and 
peace,  pouring  out  in  plenty  the  just  rights  of  the  citi- 
zen, as  well  as  the  stranger  within  our  gates,  for  it  comes 
with  its  benison  to  that  stranger  as  well  as  to  the  citizen. 
The  box  of  mythology  contained  Hope. 

The  Fourteenth  Amendment  is  the  child  of  the  great 
Civil  War,  which  desolated  our  land  from  April,  1861,  to 
April,  1865.  That  war  and  the  Thirteenth  Amendment 
abolished  chattel  human  slavery  centuries  old,  existing  in 
fifteen  states  at  its  opening.  It  set  free  four  millions  of 
slaves.  It  was  feared  that  they  would,  from  the  preju- 
dices of  the  past,  be  denied  by  those  states  their  legal 
rights.  The  amendment  was  designed  to  vest  a  power  in 
the  nation  to  guarantee  those  rights  when  denied  by  the 
states.  This  was  the  immediate  occasion  of  the  birth  of 
the  Fourteenth  Amendment;  but  its  language  is  broad, 
applying  to  all  citizens  and  persons,  "without  regard  to 
race,  color  or  nationality."7  In  the  Slaughter  House 
Cases8  it  is  said  that  as  the  main  purpose  of  Amendments 
Thirteen,  Fourteen  and  Fifteen  was  the  freedom  of  the 
African  race  and  protection  and  security  of  its  rights, 
that  fact  should  be  kept  in  view  in  their  construction. 
We  do  not  see  how  this  consideration  can  expand  or  re- 
strict the  application  or  elucidate  the  meaning  of  Amend- 
ment Fourteen  as  a  charter  applying  to  all  alike,  a  cit- 
adel of  safety  for  the  rights  of  all  for  all  time.  That 

7Yick  Wo  v.  Hopkins,  118  U.  S.  356. 
s  16  Wall.  36. 


THE     FOURTEENTH     AMENDMENT.  J5 

great  case  opened  the  judicial  construction  of  these  last 
three  amendments,  and  the  several  able  opinions  in  it 
serve  to  illuminate  them.  We  can  not  help  feeling  that 
the  decision  of  the  majority  was  born  of  a  commendable 
disposition  not  to  give  too  wide  a  construction  of  the 
powers  of  the  federal  government  under  this  amendment. 
The  amendment  is  before  us.  The  only  question  is  its 
construction.  Turning  now  to  its  first  section,  let  us  take 
up  its  specific  provisions. 


WHAT  DOES  THE  AMENDMENT  DO? 

It  is  plain  from  its  language  that  it  is  only  a  restraint 
on  state  power,  except  that  feature  relating  to  citizenship. 
It  creates  and  originates  nothing  new,  except  power  in  the 
federal  government  to  restrain  state  action.  It  creates 
no  new  privileges  or  immunities  of  citizens,  no  new  right 
of  life,  liberty  or  property,  no  new  process  of  law.  It 
only  guarantees  rights  pre-existing,  or  those  which  law, 
national  or  state,  may  after  its  date  confer.9 

IT  DOES  NOT  DEFINE. 

The  amendment  confers  citizenship  on  certain  persons, 
but  does  not  define  citizenship,  its  rights,  privileges  and 
immunities.  It  defends  the  citizen  or  person  against 
state  governmental  action,  abridging  privileges  or  immu- 
nities, or  depriving  him  of  life,  liberty  or  property  with- 
out due  process,  or  denying  him  equal  protection  of  the 

»  In  re  Kemler,  136  U.  S.  436:  Minor  v.  Happerset,  21  Wall,  1G2; 
Hurtado  v.  California,  110  U.  S.  537. 


16  RIGHTS    AND    PRIVILEGES    UNDER 

laws;  but  it  does  not  define  privileges,  immunities,  life, 
liberty,  due  process  or  equality  before  the  law.  It  is  defi- 
nite, but  not  definitive.  We  have  to  look  elsewhere — to 
the  general  law  of  the  land — to  obtain  definitions  of  all 
these  things.10  It  is  not  within  the  field  or  design  of  this 
work  to  give  these  definitions.  Many  other  works  cover 
that  field.  The  purpose  of  this  volume  is  not  to  say  to 
what  cases  Section  1  of  Amendment  Fourteen  applies, 
either  by  specification  or  the  attempt  at  formulation  of 
general  rules,  but  to  outline  the  general  mission  of  that 
section,  so  far  as  illustrated  as  yet  by  authoritative  de- 
cision. It  is  the  author's  design  not  to  make  the  volume 
large;  but  as  many  of  the  authorities  to  be  referred  to 
are  not  accessible  in  many  places,  he  will  feel  justified  in 
making  copious  extracts  from  decisions,  which  may  en- 
large the  volume  beyond  his  present  expectations. 

10  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  §86. 


TUti    FOURTEENTH     AMENDMENT.  17 


Chapter  2. 

CITIZENSHIP. 

Before  this  amendment  it  was  contended  by  Mr.  Cal- 
houn  and  many  other  able  men  who  were  the  advocates  of 
the  sovereignty  of  the  states,  that  there  was  no  federal 
citizenship  in  se;  that  the  Constitution  had  not  conferred 
of  its  own  force  any  federal  citizenship,  and  that  it  was 
only  where  a  person  was  a  citizen  of  a  state,  under  its 
laws,  that  he  became  from  that  fact  alone  a  citizen  of  the 
Union.  It  seems,  however,  reasonably  clear  that  this 
was  not  so.  Naturalized  persons  were  surely  citizens 
of  the  Union  by  reason  of  naturalization  under  the  federal 
statute  enacted  in  pursuance  of  the  provision  of  the  Con- 
stitution giving  Congress  power  to  pass  uniform  natu- 
ralization laws,  and  white  persons  born  within  the  terri- 
tory and  allegiance  of  the  Union  were  surely  its  citizens  1 
by  reason  of  the  common  law  doctrine  that  "natural  born 
subjects  are  such  as  are  born  within  the  dominion  of  the 
Crown  of  England,  that  is,  within  the  ligeance,  or  as  it 
is  generally  called,  the  allegiance  of  the  king,  and  aliens 
such  as  are  born  out  of  it.  Allegiance  is  the  tie,  or 
lifjamen,  which  binds  the  subject  to  the  king  in  return 
for  that  protection  which  the  king  affords  the  subject" 

il  Bl.  Com.  366;    Minor  v.  Happersett,  21  WalL  162,  1<W- 


18  RIGHTS    AND    PRIVILEGES    UNDER 

If  the  common  law  would  not  do  this,  then  the  general 
law  of  nations  would  do  so.2  I  later  meet  a  case,  so  set- 
tling the  matter.3  However,  the  amendment  renders 
this  point  immaterial  by  reason  of  its  own  creation  of 
citizenship.  The  amendment  only  declares  as  to  citi- 
zenship what  was  law  before,  except  as  to  Africans.4 
Their  birth  in  the  United  States  did  not  make  them  citi- 
zens under  Dred  Scott  Case. 

What  is  Citizenship  ? — It  is  hard  to  define.  He  is  a  cit- 
izen who  owes  allegiance  to  a  government  and  is  entitled 
to  its  protection  at  home  or  abroad,  not  a  mere  denizen  or 
inhabitant,  A  mere  passenger  through  a  country,  or  even 
an  inhabitant,  owes  obedience  to  its  laws  while  in  it ;  but 
he  is  not  a  citizen,  as  he  does  not  owe  technical  allegiance. 
Indians  are  not  citizens.5  One  may  be  a  citizen,  yet  not 
a  voter,  or  capable  of  becoming  a  voter,  as  women,  chil- 
dren and  Indians.6  'To  be  a  citizen  one  must  be  a  mem- 
ber of  the  state  or  nation,  capable  of  enjoying  its  sov- 
ereignty, its  highest  rights,  privileges  and  immunities — 
a  part  of  its  fabric.7^ 

2  Vattel,  Law  of  Nations,  101;  State  v  Hunt,  2  Hill  (s.  c.),  1;  2 
Kent,  37,  42. 

3U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  658. 

4/n  re  Look  Tin  Sing,  21  Fed.  905;  U.  S.  v.  Wong  Kim,  169 
U.  S.  676. 

s  Elk  v.  Wilkins,  112  U.  S.  94. 

e  Minor  v.  Happersett,  21  Wall.  162. 

»Same  case;  Scott  v  Sandford,  19  How.  393;  U.  S.  v.  Cruik- 
shank,  02  U.  S.  542. 


THE     FOURTEENTH     AME\DMEXT.  Jfl 

ARE   CITIZENS? 

The  first  clause  of  the  amendment  answers.  It  confers 
the  boon  of  citizenship  on  every  person  born  or  natural- 
ized in  the  United  States,  so  he  be  subject  to  its  juris- 
diction. He  is  a  citizen  of  the  republic  and  of  the  par- 
ticular state  wherein  he  resides.  Whether  born  in  a  state 
or  territory,  he  is  a  citizen.  It  applies  to  both  sexes.  A 
woman  is  a  citizen  as  well  as  a  man.8  Also  children. 
Being  a  citizen,  he  is  entitled  to  all  the  rights,  privileges 
and  immunities  of  a  citizen  of  the  republic  and  of  his 
state.  It  is  clear  that  an  alien,  though  resident  here, 
must  be  naturalized  to  receive  citizenship,  as  the  word 
"naturalized"  shows  that  the  provisions  of  the  original 
Constitution  giving  Congress  power  to  establish  a  uni- 
form rule  of  naturalization,  and  the  acts  under  it  are 
left  in  full  force.  Notice  that  mere  birth  or  naturali- 
zation gives  national  citizenship,  but  to  be  a  citizen  of 
a  state  a  person  must  reside  therein.  If  born  or  natu- 
ralized in  the  United  States  anywhere,  and  resident  in 
any  state,  he  is  a  citizen  of  that  state,  without  its  con- 
sent, and  entitled  to  the  rights  of  state  citizenship,  what- 
ever they  are.  This  was  the  law  before  the  amendment.9 
The  case  cited  holds  that  if  the  supreme  court  of  a  state 
denies  right  under  federal  citizenship,  the  federal  su- 
preme court  may  reverse  its  decision.^ 

s  Minor  v.  Happersett,  21  Wall.  162. 

»  Ch.  J.  Fuller  in  Boyd  v.  Nebraska,  143  U.  S.  159 ;  Towles  Case, 
5  Leigh,  743;  Slaughter  House  Cases,  16  Wall.  73;  U.  S.  v.  Cruik- 
shank,  92  T.  S.  542. 


20  RIGHTS    AND    PRIVILEGES    UNDER 

STATE  AND  NATIONAL  CITIZENSHIP. 

As  just  stated,  one  must  reside  in  a  state  to  be  a  citizen 
of  that  state,  but  not  so  with  national  citizenship.  One 
may  still  be  a  citizen  of  the  nation  though  resident  abroad. 
The  amendment  does  not  require  continued  residence  for 
national  citizenship,  as  it  does  to  retain  state  citizenship 
under  the  amendment.10  Once  a  citizen,  he  continues  such, 
though  no  longer  resident  in  the  United  States,  but  trav- 
eling abroad,  and  is  entitled  to  protection  as  a  citizen 
until  he  renounces  citizenship  by  expatriation;  for  the 
statute  says  that  "all  naturalized  citizens  of  the  United 
States  while  in  foreign  countries  are  entitled  to  and  shall 
receive  from  this  government  the  same  protection  of  per- 
son and  property  which  is  accorded  to  native-born  citi- 
zens." U.  S.  Kev.  St.  §2000. 

EXPATEIATION. 

Federal  citizenship  is  lost  by  expatriation;  the  citizen 
by  it  becomes  an  alien,  and  loses  all  rights  adhering  to 
him  as  a  citizen,  and  is  released  from  his  obligations  as 
such.11  The  English  common  law  sternly  denies  this  right 
of  expatriation.  Once  a  native  born  citizen,  always  such 
until  death.  He  can  not  by  swearing  allegiance  to  another 
country  and  abjuring  his  own  release  himself  from  the 
bond  of  his  allegiance.12  This  doctrine  has  been  admitted 
by  the  American  courts  as  law  at  one  time  in  this  coun- 

10  Slaughter  House  Cases,  16  Wall.  74. 

11  Santissima  Trinidad,  1  Brock,   (U.  S.)   478. 

12  1  Bl.  Com.  369. 


THE    FOURTEENTH     AMENDMENT.  21 

try;13  but  at  a  later  period  the  American  contention  in 
favor  of  the  right  of  expatriation  obtained  in  this  country. 
The  prevalent  doctrine  is  that  a  denial  of  the  right  of 
expatriation  is  a  restraint  upon  human  liberty  and  happi- 
ness, denying  to  a  person  the  right  to  emigrate  and  aban- 
don his  native  country,  and  against  the  liberty  of  the 
Roman  law,  and  contrary  to  American  principles.  Cicero 
in  his  orations  highly  eulogized  this  feature  of  the  Roman 
law.  The  United  States  fought  with  Britain  the  war  of 
1812  to  sustain  the  right  of  expatriation  and  protect 
naturalized  citizens.  Chancellor  Kent  thought  that  the 
right  of  expatriation  could  not  be  exercised  without  the 
consent  of  the  government;  but  this  was  manifestly 
against  our  own  doctrine  as  contended  for  in  the  war 
of  1812  and  inconsistent  with  our  naturalization  law. 
Though  a  good  many  decisions  cited  by  Chancellor  Kent 
would  seem  to  sustain  him,14  his  position  was  untenable.15 
It  was  bad  law  before  the  Act  of  the  27th  July,  1868,16 
allowing  expatriation. 

That  act  reads  as  follows:  "Whereas  the  right  of  ex- 
patriation is  a  natural  and  inherent  right  of  all  people, 
indispensable  to  the  enjoyment  of  the  rights  of  life,  liberty 
and  the  pursuit  of  happiness ; 

"That  any  declaration,  instruction,  opinion  or  decision 
of  any  officer  of  the  United  States,  which  denies,  restricts, 
impairs  or  questions  the  right  of  expatriation,  is  declared 
inconsistent  with  the  fundamental  principles  of  the  re- 

isTalbot  v.  Jansen,  3  Ball.  133;    U.  S.  v.  Gillies,  1  Pet.  C.  C.  159. 

1*2  Kent,  49. 

is  In  re  Tin  Sing,  21  Fed.  R.  905. 

IB  U.  S.  Rev.  Stat.  §1999;  Jens  v.  Lands,  84  Fed.  73;  Alsberry 
v  Hawkins,  33  Am.  Dec.  546. 


22  RIGHTS    AND    PRIVILEGES    UNDER 

public."17  This  broad  declaration  is  an  emphatic  recog- 
nition by  the  United  States  of  the  right  of  expatriation, 
although  it  has  been  questioned  by  some  whether  it  settles 
the  controverted  question  of  the  right  of  an  individual, 
by  his  own  mere  act,  without  his  government's  consent, 
to  expatriate  himself.  This  doubt  is  made,  because  the 
act  merely  recites  a  principle ;  but  this  doubt  is  surely  un- 
tenable in  the  face  of  the  plain  recognition  of  the  right  of 
expatriation  contained  in  said  act,  notwithstanding  the 
act  does  not  specify  any  mode  of  expatriation  or  what 
amounts  to  expatriation. 

The  government  by  this  act  admits  the  right  and  con- 
sents to  it,  and  we  think  it  concedes  that  the  mere  act  of 
the  party  can  effect  expatriation.  What  acts  effect  it 
is  left  to  the  open  law,  and  the  subject  will  not  be  entered 
upon  here  further  than  to  give  the  general  definition: 
"Expatriation  is  the  voluntary  renunciation  of  one's 
nationality  by  becoming  a  citizen  of  another  country."18 
Perhaps  the  question  is  not  one  of  great  importance ;  still 
it  may  be.  A  citizen  who  goes  abroad  and  helps  our 
enemy  in  war,  thinking  he  has  expatriated  himself,  and 
returning  here  is  indicted  for  treason,  would  be  deeply 
interested  in  having  the  act  of  Congress  construed  as  giv- 
ing the  government's  consent  to  his  expatriation;  and 
also  have,  what  he  has  not,  a  statutory  definition  or 
formula  of  expatriation ;  but  it  would  perhaps  be  danger- 
ous and  impracticable  to  say  in  advance  by  legislation 
what  acts  constitute  expatriation;  as  we  can  imagine  very 

IT  U.  S.  Rev.  Stat.  §1999. 

isSantissima  Trinidad,  1  Brock.  (U.  S.)  478;  in  re  Look  Tin 
Sing,  10  Sawyer,  355,  21  Fed.  905. 


THE*    FOURTEENTH     AMENDMENT.  23 

many  acts  in  the  conduct  of  the  party.  It  was  onoe  law 
that  as  a  man  can  be  a  citizen  of  two  sovereigns  at  the 
same  time,  he  could  expatriate  as  a  federal  citizen,  and 
remain  a  state  citizen,  if  the  state  laid  down  a  process 
of  expatriation  not  complied  with;19  but  as  the  amend-  r 
ment  defines  both  citizenships,  and  residence  is  a  necessity 
for  state  citizenship,  I  think  that  acts  that  work  expatria- 
tion of  federal  would  work  expatriation  also  of  state 
citizenship. 

Desertion  from  the  military  or  naval  service,  with  de- 
parture from  the  United  States,  operates  as  a  forfeiture 
of  citizenship.20 

Loss  of  State  Citizenship. — As  above  stated,  though 
a  citizen  of  the  United  States  may  be  residing  abroad, 
yet  he  retains  his  federal  citizenship,  unless  he  expatriates 
himself;  but  mere  residence  abroad  loses  his  state  citi- 
zenship. Of  course  his  residence  abroad,  to  effect  this 
result,  must  be  animo  manendi,  not  transient  residence, 
but  residence  in  the  sense  of  domicil. 

State  Citizenship  Only. — Can  a  state  confer  its  citi- 
zenship upon  one  not  a  citizen  of  the  United  States  ? 
The  Dred  Scott  case,  before  the  amendment,  says  it  can. 
The  amendment  contemplates  two  classes  of  citizens.  A 
man  may  be  a  federal  citizen,  bjyt  not  a  state  citizen,  as 
just  stated ;  but  can  he  be  a  state  citizen  and  not  a  federal 
citizen  ?  This  seems  unsettled.  It  is  doubtful  whether  he 
can  be.  True,  the  amendment  seems  to  have  for  its  mis- 
sion, first,  to  make  native  and  naturalized  citizenship,  and 

loTalbot  v.  Jansen,  3  Ball.  133;  Murray  v.  McCarty,  2  Munford, 
393. 

20  Rev.  St.  §1998. 


24  RIGHTS    AND    PRIVILEGES    UNDER 

second,  to  make  federal  citizens,  if  resident  in  a  state, 
citizens  of  that  state  and  give  them  rights  as  such;21 
but  it  does  not  seem  to  go  further,  or  expressly  deny  the 
right  in  states  to  confer  their  separate  citizenship.  We 
do  not  clearly  see  why  a  state  might  not  do  so;  but  it 
would  seem  to  be  very  anomalous  that  a  man  should  be  a 
citizen  of  the  state  and  not  of  the  Union,  especially  as 
the  power  of  naturalization  is  committed  to  the  federal 
government,  and  a  state  can  not  naturalize,  and  as  this 
amendment  makes  a  federal  declaration  of  citizenship, 
and  would  seem  to  confer  the  whole  matter  of  citizenship 
upon  the  national  government.  It  would  seem  that  the 
amendment  intends  to  give  a  full  definition  of  both  state 
and  federal  citizenship,  and  that  no  one  not  coming 
within  its  definition  can  be  a  citizen  of  either  the  United 
States  or  a  state.  Therefore,  as  stated  above,  the  perma- 
nent residence  abroad,  which  would  amount  to  expatri- 
ation and  decitizenize  a  citizen  of  the  Nation,  would  like- 
wise take  away  his  state  citizenship.  The  doctrine  once 
held  that  a  man  might  lose  his  federal  and  retain  his 
state  citizenship,  because  not  complying  with  the  formality 
for  expatriation  prescribed  by  state  statute,  would  seein 
no  longer  to  apply.22 

This  right  of  sole  state  citizenship  is  denied  by  some 
authorities.23 

Native  Citizens. — The  amendment  says  that  all  persons 
born  in  the  United  States  are  citizens,  if  subject  to  the 

21  Slaughter  House  Cases,  16  Wall.  36. 

22Talbott  v.  Jansen,  3  Ball.  133;  Murray  v.  McCarty,  2  Munford, 
393. 

23  Lanz  v.  Randall,  4  Dill.  425;  approved  in  Minneapolis  v.  Reum, 
12  U.  S.  App.  446;  Prentis  v.  Brennan,  2  Blatch.  162. 


THE     FOURTEENTH     AMENDMENT.  25 

jurisdiction  of  the  United  States.  Mere  birth  within  our 
territory  does  not  always  make  the  child  a  citizen.  He 
must  be  born  under  the  allegiance  of  the  United  States. 
A  child  may  be  a  citizen,  though  born  without  the  United 
States,  if  born  under  its  allegiance,  as,  for  instance,  the 
child  of  a  citizen  traveling  abroad,  or  temporarily  resi- 
dent abroad,  yet  intending  to  return;  or  a  child  of  an 
American  minister,  consul  or  the  attachee  of  an  American 
embassy ;  or  a  child  born  on  an  American  ship  in  foreign 
waters  of  American  parents.  In  such  cases  the  status  of 
the  child  is  to  be  tested  by  his  lineage  or  extraction,  not 
by  the  locality  of  his  birth.  We  repeat  that  mere  birth 
within  American  territory  does  not  always  make  the  child 
an  American  citizen.  He  must  be  born  within  allegiance 
to  the  United  States,  within  its  "jurisdiction."  Such  is  the 
case  with  children  of  aliens  born  here  while  their  parents 
are  traveling  or  only  temporarily  resident,  or  of  foreign 
ministers,  consuls  and  attachees  of  foreign  embassies.  Such 
children  are  born  within  our  territory,  and  within  our  ter- 
ritorial jurisdiction,  but  not  within  the  pale  of  allegiance 
to  us,  as  when  born  they  are  not  subject  to  our  laws.  Chil- 
dren born  here  of  foreign  representatives  are,  under  inter- 
national law  and  common  law,  born  within  the  allegiance 
of  the  countries  sending  them;  such  representatives  are 
still  citizens  of  their  own  countries,  owing  allegiance 
thereto.  For  this  purpose  their  houses  are  the  territory 
of  their  countries.  Such  representatives  have  transient 
residence  here,  not  permanent  domicile.  So  with  chil- 
dren of  aliens  born  on  foreign  ships.  The  foreign  ship, 
though  in  our  waters,  is  foreign  territory  for  this  pur- 


26  RIGHTS    AXD    PRIVILEGES    UNDER 

pose.24     Child  born  abroad  of  parent  temporarily  abroad 
is  a  native  citizen,  even  if  mother  an  alien.25 

Children  Born  Abroad. — Suppose  an  American  citizen, 
native  or  naturalized,  not  temporarily  absent,  but  domi- 
ciled abroad,  have  children  born  abroad.  Are  such  chil- 
dren American  citizens  ?  They  are  not,  because  born 
abroad  and  not  subject  to  our  jurisdiction.  They  come 
under  the  common  law  doctrine  that  all  persons,  though 
of  foreign  born  parents,  born  within  the  territory  of  a 
nation  are  its  citizens,  by  which  rule  a  child  born  of  alien 
parents  domiciled  permanently  in  the  United  States  is 
a  citizen  thereof.  True,  by  Section  4  of  the  Naturaliza- 
tion Act  of  1802,  such  persons  were  made  citizens ;  but  that 
section  related  only  to  children  of  persons  who  were  citi- 
zens at  its  date,  or  had  been,26  and  though  it  may  be  that 
some  persons  yet  live  who  would  be  citizens  under  that 
section,  they  must  be  very  few  in  number.  If  any  are 
yet  living,  they  will  soon  be  gone;  so  the  point  is  not 
important.  That  section  would  not  apply  to  children  of 
persons  once  citizens,  but  expatriated.27  There  is  now 
no  statute  giving  citizenship  to  children  born  abroad  of 
American  citizens  permanently  domiciled  abroad,  because 
the  parents  have  expatriated  themselves.  The  child  fol- 
lows the  father.28  By  Section  1993  of  the  Eevised 
Statutes  all  children  born  out  of  the  limits  and  jurisdic- 
tion of  the  United  States,  whose  fathers  are  at  their  birth 

24  In  re  Look  Tin  Sing,  21  Fed.  95;    In  re  Wong  Kim  Ark,  71  Fed. 
382,  169  U.  S.  682;  1  Bl.  Comm.  373;  Vattel,  L.  Nations,  102. 
25Ludlam  v.  Ludlam,  26  N.  Y.  356;    84  Am.  D.  193. 
2«  2  Kent.  52. 

27  Brown  v.  Dexter,  66  Cal.  30. 

28  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  D.  193. 


THB    FOURTEENTH     AM  i:\intllNT.  27 

citizens  of  the  United  States,  are  declared  to  be  citizens 
of  the  United  States,  with  the  proviso  that  citizenship 
shall  not  descend  to  children  whose  fathers  never  resided 
in  the  United  States.  We  think  that  is  simply  declaratory 
of  the  general  law.  It  refers  to  the  children  of  fathers 
who  have  not  ceased  to  be  citizens  by  permanent  domicile 
abroad,  to  fathers  yet  continuing  citizens,  who  have  the 
intention  to  return  home.  Our  admission  of  the  right 
of  expatriation  would  forbid  a  wider  construction.  It  is 
supposed  that  the  child  of  an  American  mother  born  to 
her  while  she  was  abroad,  she  still  a  citizen,  would  be  a 
citizen  of  the  United  States,  and  she  being  at  the  birth  a 
single  woman,  as  we  do  not  suppose  that  the  presence  of 
the  word  "fathers"  in  the  act,  would  prevent  such  child 
of  such  mother  from  being  a  citizen.  If  the  father  be 
living,  however,  at  the  child's  birth,  and  he  an  alien,  and 
the  mother  a  citizen  of  the  United  States,  the  child  would 
be  an  alien.  Ludlam  v.  Ludlam,  84  Am.  D.  193,  and  note. 

Children  born  abroad  of  citizens  temporarily  abroad, 
though  born  abroad,  are  citizens  because  "subject  to  the 
jurisdiction"  of  the  United  States,  in  the  same  sense  as 
children  of  ambassadors,  and  thus  under  the  amendment 
are  citizens,  as  they  surely  would  have  been  before  it. 
The  amendment  is  only  declaratory  of  antecedent  law  of 
native  citizenship,  except  as  to  Africans,  by  limitation 
of  the  Dred  Scott  Case.  Such  children  when  of  age  may 
elect  the  citizenship  of  birthplace.29 

Alien  Children  of  Aliens. — An  alien  child  of  an  alien 
is,  of  course,  an  alien;  but  the  alien  child  of  an  alien 

29  Ludlam  v.  Ludlam,  84  Am.  D.  193,  Story,  Confl.  L.  §10;  In  re 
Tin  Sing,  21  Fed.  905;  U.  S.  v.  Wong  Kim,  169  U.  S.  676. 


28  RIGHTS    AND    PRIVILEGES    UNDER 

who  has  merely  declared  his  intention  to  become  a  citizen, 
and  dying  before  final  admission  to  full  citizenship,  while 
not  a  citizen  may  become  a  citizen  at  once  by  taking  the 
naturalization  oath.  So  with  the  mother.30 

The  statue  does  not  say  infant  children;  but  we  pre- 
sume the  right  would  be  confined  to  them. 

Alien  Children  of  Naturalized  Parents,— Children  born 
abroad  of  an  alien  become  at  once  full  citizens  by  the 
naturalization  of  the  parent,  if  then  under  age  and  dwell- 
ing in  the  United  States,  whether  the  parent  be  father  or 
mother,  single  or  married.31  When  of  age  he  may  elect 
to  take  citizenship  at  the  place  of  birth.  Ludlam  v. 
Ludlam,  84  Am.  D.  193;  Whart.  Conn.  L.  §10. 

Alien  Women  Marrying  Citizens,  native  or  naturalized, 
become  by  such  marriage  American  citizens,  if  they  them- 
selves could  be  naturalized.32  No  matter  whether  the 
husband  became  a  citizen  before  or  after  marriage.  If 
the  husband  is  a  citizen,  so  the  wife  should  be.33  Her 
minor  children  have  also  been  held  to  become  citizens 
by  such  marriage.34 

American  Women  Marrying  Aliens, — It  seems  they  there- 
by become  aliens,  if  they  reside  abroad  permanently,  as 
our  act  makes  citizens  of  alien  women  marrying  an 
American  citizen.  Marriage  and  residence  abroad  show 
expatriation  of  the  woman.35  But  an  American  woman 
marrying  an  alien,  if  she  continue  to  reside  here,  does 

so  Rev.    Stat.    §2168. 
si  Rev.  Stat.  §2172. 

32  Rev.  Stat.  §1994. 

33  Kelly  v.  Owen,  7  Wall.  496. 
3*Kreitz  v.  Behrrenmayer.   125  111.   141. 

scComitis  v.  Parkson,  56  Fed.  556;  Ruckgaber  v.  Moore,  104  Fed. 
947;  Shanks  v.  Dupont,  3  Pet.  242. 


THti    FOURTEENTH     AMENDMENT.  29 

not  lose  citizenship.36  Minor  child  of  alien  woman  marry- 
ing a  citizen  becomes  a  citizen  by  §2172,  according  to 
Gum  v.  Hubbard,  10  Am.  St.  R.  312. 

Native  Children  of  Aliens. — Children  born  in  the  United 
States  of  alien  parents,  not  temporarily  resident  here,  but 
permanently  domiciled,  are  American  citizens,  whether 
the  parents  be  Chinese  or  other  nationality.37  This  was 
law  before  the  amendment,  and  is  so  under  it.  It  was 
common  law.38  Women  may  be  naturalized,  Priest  v. 
Cummings,  16  Wend.  617 ;  Brown  v.  Schilling,  9  Md.  82. 

Indians. — They  are  born  within  the  American  juris- 
diction and  territory,  or  rather  territorial  jurisdiction, 
and  might  seem  to  be  citizens ;  but  so  long  as  they  acknowl- 
edge allegiance  to  their  nation  or  tribe,  acknowledge  their 
chief,  they  are  not  citizens  of  the  United  States.  The 
Indian,  though  born  here,  does  not  fill  the  other  elements 
of  definition  of  citizenship — he  is  not  "subject  to  the  juris- 
diction" of  the  nation  in.  the  particular  sense  of  owing  that 
full  obedience,  allegiance  and  submission  to  the  laws  owing 
from  citizens  generally.  He  is  an  exception,  one  sui 
generis.39  Revised  Statutes  Section  1992,  gives  a  very 
accurate  description  of  natural  citizenship :  "All  persons 
born  in  the  United  States,  and  not  subject  to  any  foreign 
power,  excluding  Indians  not  taxed,  are  declared  to  be 
citizens  of  the  United  States."  Thus,  Indians  are  citizens 
if  taxed  it  would  seem — otherwise  not.  Taxation  makes 
them  citizens  under  that  act  regardless  of  continued  tribal 

36  Pequignot   v.   Detroit    16  Fed.  211;    Beck   v.   Magillis,   9   Barb. 
35. 

37  Lynch   v.    Clark,    1    Sandf.    Ch.    584. 

38  In  re  Wong   Kim,    169.   U.   S.   696;    Lem   King  Dun,   7   U.   S 
App.    31. 

3»  McKay  v.  Campbell,  2  Sawyer,  118;  U.  S.  v.  Kagama,  118  U.  S. 
375. 


30  RIGHTS    AND    PRIVILEGES    UNDER 

allegiance,  a  change  in  instances  where  there  is  such 
taxation. 

If  the  Indian  has  abjured  fealty  to  his  tribe  or  nation, 
amalgamated  with  the  people  generally  by  residing  sepa- 
rate and  apart  from  his  tribe,  and  adopting  civilized  life, 
he  is  a  citizen.40  Until  this  act  he  did  not  thus  become 
a  citizen.41  The  same  act  makes  an  Indian  a  citizen 
who  elects  to  take  an  allotment  of  public  land.42  Indians 
can  be  naturalized.43  The  general  naturalization  law 
does  not  apply  to  them,  they  not  being  white,  and  only 
special  act  can  naturalize  them.44 

An  act  of  the  first  session  of  the  Fiftieth  Congress,  Chap- 
ter 818,  makes  an  Indian  woman  marrying  a  citizen  also 
a  citizen. 

A  citizen  becoming  a  member  of  an'  Indian  tribe  by 
adoption  does  not  lose  citizenship.45 

Colored  People  of  African  Descent — By  the  Dred  Scott 
Case,46  in  1856,  which  almost  convulsed  the  nation  from 
the  circumstance  that  the  controversy  touching  African 
slavery  was  then  producing  intense  political  agitation, 
which  decision  subjected  the  Supreme  Court  to  the  severest 
criticism  by  the  opponents  of  slavery,  it  was  held  that 
Africans  brought  to  America  and  made  slaves,  and  their 
'descendants,  though  free,  were  not  citizens,  and  that  they 
could  not  be  naturalized  as  aliens.  The  slaves  were  made 
free  men  by  the  Thirteenth  Amendment,  but  under  the  law 

40  Acts  2  Sess.  49  Congress,  Ch.  119. 

41  Elk  v.  Wilkins,  112  U.  S.  94. 

42  State  v.  Denoyer,  72  N.  W.  1014. 

43  Elk  v.  Wilkins,  112  U.  S.  94. 

44  Wilson  v.  Wall,  6  Wall.  83. 

45  French  v.  French,  52  S.  W.  517. 

46  10  How.  393. 


THE    FOURTEENTH     AMENDMENT.  31 

as  given  by  that  case,  they  were  not  citizens.  They  could 
not  become  such.  They  could  not  be  naturalized.  One 
great  moving  occasion  for  the  Fourteenth  Amendment  was 
the  purpose  to  overrule  that  decision  and  confer  citizen- 
ship upon  the  f reedmen.  The  amendment,  by  its  broad 
language,  effectually  does  this,  making  the  f  reedmen  citi- 
zens, with  all  the  rights,  privileges,  and  immunities  per- 
taining to  citizens.  Justice  Field  so  held  in  San  Mates 
v.  R.  R.  Co.47  There  was  little  or  no  call  for  the 
Amendment  as  to  other  people,  as  its  declaration  as  to 
their  citizenship  was  already  the  law ;  but  as  to  those  f  reed- 
men, under  the  Dred  Scott  Case,  if  made  citizens,  it  was 
indispensable  to  confer  citizenship  by  act  of  Congress  or 
constitutional  amendment,  as  by  that  case  the  freedmen 
were  not  nor  could  become  citizens.  The  nation  in  its 
wisdom  chose  to  adopt  the  amendment,  moved  chiefly  by 
that  purpose.  The  Civil  Rights  Act,  passed  before  this 
amendment,  gave  these  colored  people  civil  rights  of  per- 
son and  property,  the  same  as  other  persons.48  That  act 
was  reenacted  in  1870.  The  naturalization  statute  did 
not  authorize  the  naturalization  of  colored  persons,  as  it 
required  the  person  asking  citizenship  to  be  a  white  per- 
son; but  the  act  of  July  14,  1870,  changed  this  by  giv- 
ing to  Africans  the  benefit  of  the  naturalization  statute.49 
African  Women  Marrying  Citizens. — As  Section  1994, 
U.  S.  Revised  Statutes,  makes  the  wife  of  a  citizen,  though 
she  be  an  alien,  a  citizen  without  naturalization,  if  she 
could  herself  be  naturalized,  an  African  woman  becomes 

*7  13  Fed.  722. 

« Rev.   St.   §§1977,   1978;     Strauder  v.  West  Va.   100  U.   S.   303; 
Ex  parte  Va.  100  U.  S.  339. 
«  Revised  Stat.  §2169. 


32  RIGHTS    AND    PRIVILEGES    UNDER 

herself  a  citizen  without  naturalization.50  As  the  amend- 
ment in  words  requires  naturalization,  a  question  might 
be  made  as  to  the  constitutionality  of  that  provision,  dis- 
pensing with  naturalization  in  the  case  of  alien  women 
marrying  citizens.  It  is  valid,  however,  under  the  case 
of  Dorsey  v.  Brigham.51  That  provision  applies  only 
to  a  woman  marrying  a  citizen  man,  not  to  an  alien  man 
marrying  a  citizen  woman. 

Mongolians. — These  were  not  considered  "white  per- 
sons," and  therefore  not  entitled  to  naturalization,  even 
before  the  act  expressly  excluding  Chinese.52  The  la- 
ter Chinese  Exclusion  Act  denies  them  naturalization.53 
Japanese  are  Mongolians. 

Chinese  Children — Those  born  here  of  Chinese  parents 
permanently  residing  here  are  American  citizens  by  rea- 
son of  birth  here,  though  their  parents  are  aliens.  This 
is  the  common  law  doctrine  before  stated  in  these  pages, 
that  any  one  born  within  the  territory  and  allegiance  of 
the  king  or  country  is  a  natural  born  citizen.  Such. 
children  can  not  be  deported  or  excluded  under  the  act 
excluding  the  immigration  of  Chinese  and  deporting  them 
under  certain  circumstances.54 

Filipinos  and  Puerto  Ricans — The  Philippine  Islands 
and  the  Island  of  Puerto  Rico  have  been  recently  acquired 
from  Spain  by  treaty.  It  is  supposed  that  their  inhab- 
itants at  the  time  of  acquisition  are  not  citizens  of  the 

sofirodis  v.  Brodis,  86  Fed.  R.  951,    Rev.  St.  §1994. 

si  52  N.  E.  303.     So  by  Boyd  v.  Thayer,  143  U.  S.  135,  §8. 

52  in  re  Ah  Yup,  5  Sawy.   (U.  S.)   155. 

ss  In  re  Gee  Hop,  71  Fed.  R.  274. 

54  22  U.  S.  Stat.  at  large,  Ch.  126,  §14,  p.  261;  In  re  Wong  Kim 
Ark,  71  F.  382,  169  U.  S.  696;  Lem  King  Dun  v.  U.  S.,  7  U.  S. 
App.  31 ;  Re  Look  Tin  Sing,  21  Fed.  905. 


THE     FOURTEENTH     AMENDMENT.  33 

r iiited  States.  They  were  not  born  within  the  territory 
and  allegiance  of  the  United  States,  as  required  by  the 
Fourteenth  Amendment,  and  can  not  be  citizens  because 
of  it,  and  would  not  be  under  the  common  law  and  law  of 
nations  defining  natural  citizens  as  those  born  within  the 
territory  and  allegiance  of  a  country.55  The  Act  of  1802 
limited  naturalization  to  "white  persons,"  as  does  also 
the  present  law,56  and  it  has  been  held  that  Africans  could 
not  be  naturalized,  and  further  it  was  held  in  the  United 
States  Circuit  Court  that  a  Mongolian  was  not  a  "white 
person"  and  could  not  be  naturalized.57  As  these  decis- 
ions limit  naturalization  to  the  Caucasian  or  white  race, 
it  is  questionable  whether  a  Filipino  can  be  naturalized. 
Likely  not,  under  those  decisions.  However,  it  remains 
to  be  decided.  Mankind  is  divided  in  ethnology  into  dif- 
ferent races.  One  of  these  is  the  Caucasian  or  white  race, 
another  Mongolian,  another  Malayan.  A  Filipino  is  un- 
derstood to  be  one  or  the  other  of  the  two  latter  races ;  or 
rather,  some  of  one  and  some  of  the  other.  We  do  not  see 
how  he  can  be  naturalized  under  the  statute  as  it  is.  The 
Act  of  1870  specifically  brings  the  African  within  the 
naturalization  act,  but  beyond  that  the  words  "white  per- 
sons" still  find  place  in  the  law  and  would  therefore  seern 
to  exclude  Mongolians  and  Malayans.  We  suppose,  how- 
ever, that  Spaniards  or  others  of  white  blood  resident  in 
the  Philippine  Islands  would  come  under  our  naturali- 
zation laws.  We  suppose  that  Puerto  Kicans  are  entitled 
to  naturalization,  as  they  are  of  either  Caucasian  or  Afri- 

651   Bl.  Com.   366;    Vattel,  L.  Nations,   101;    2  Kent,   1;     State 
v.  Hunt,  2  Hill,  15. 

5«  Appendix,  Rev.  Stat.  p.  1435. 
ST  In  re  Ah  Yup,  5  Sawy.  155. 


34  RIGHTS    AND    PRIVILEGES    VXDER 

can  extraction.  No  doubt,  f  under  principle  above  stated, 
children  of  Filipinos  born  since  the  acquisition  of  the 
islands  by  the  United  States  would  be  citizens.58  But, 
though  the  Filipinos  are  not  within  the  naturalization 
laws,  still  they  are  American  freemen,  entitled  as  persons, 
under  the  Fifth  and  Sixth  Amendments  to  the  Constitution 
of  the  United  States,  and  under  the  Civil  Rights  Act  and 
the  free  spirit  of  our  government,  to  the  personal  rights 
accorded  by  the  benign  system  of  government  of  the  United 
States.59  They  are  subject  to  our  jurisdiction  and  laws, 
and  from  that  very  fact  they  are  freemen  in  a  free  repub- 
lican government,  not  subjects  of  an  empire  or  monarchy. 
The  treaty  of  peace  with  Spain  did  not  give  the  inhabi- 
tants of  these  islands  citizenship,  but  committed  the  gov- 
ernment of  them  to  Congress.  Congress  must  govern  them 
according  to  principles  of  American  free  government. 
As  the  treaty  conveys  the  islands  to  us,  we  must  regard  our 
right  as  based  on  cession,  not  conquest,  a  consideration 
repelling  all  thought  of  power  of  imposing  arbitrary  gov- 
ernment on  those  people. 

ss  In  re  Look  Tin  Sing,  21  Fed.  905;    U.  S.  v.  Wong  Kim  Ark, 
169  U.  S.  649. 

59  Thompson  v.  Utah,  170  U   S.  346;    Bank  v.  County,  101  Id.,  129. 


THE     FOLRTLEMU     AMES7DMENT.  35 


Chapter  3. 
ACQUISITION  OF  TERRITORY. 

The  nation  acquired  these  islands  by  a  power  inherent 
in  all  nations,  the  power  to  acquire  territory  by  conquest 
or  treaty,  as  a  necessary  implication.  A  nation  without 
such  power  would  be  a  nondescript  among  nations.  No 
matter  that  the  Constitution  does  not  give  this  power  in 
terms.  It  gives  war  and  treaty  making  pawer,  national 
powers.  This  includes  it.1  It  is  inherent  in  a  nation. 
It  was  strenuously  denied  once.2  Even  Mr.  Jefferson 
thoiight  that  it  called  for  an  amendment  to  the  Constitu- 
tion, though  he  advised  Congress  to  approve  his  Louisiana 
purchase  in  silence,  thus  tacitly  admitting  such  implied 
power.  But  that  was  in  the  early  days  of  strict  construc- 
tion of  the  Constitution,  before  time,  progress  and  evo- 
lution had  brought  about  things  now  well  settled.  Wash- 
ington, Jackson,  Jefferson,  Polk,  Buchanan,  Douglas, 
Lincoln,  Marcy,  Grant  have  recognized  this  power  and  ad- 
vocated its  policy.  Chief-Justice  Taney  admitted  the 
national  power  to  acquire  territory,  "not  to  hold  as  a  col- 
ony, to  be  governed  at  its  will  and  pleasure,"  but  to  be 
governed  as  a  territory  until  fit  to  become  a  state.3  This 

1  Insurance  Co.  v.  Bales  of  Cotton,  1  Pet.  511;    Chinese  Exclusion 
Case,  130  U.  S.  581;  U.  S.  v.  Huckabee,  16  Wall.  434. 

2  Story  on  Const.  §1282. 

Scott  Case,  19  How.  395. 


36  RIGHTS    AND    PRIVILEGES    UNDER 

denies  an  arbitrary,  tyrannical  government.  Even  the  pow- 
er to  erect  territorial  governments  has  been  denied;  but 
the  Louisiana,  Florida,  California  and  Alaska  purchases, 
and  the  erection  of  territorial  governments  in  their  ter- 
ritory have  long  ago  negatived  those  ideas.  President 
Pierce  in  1854  made  a  treaty  of  absolute  acquisition  of  the 
Sandwich  Islands,  which  failed  only  on  account  of  the 
king's  death  and  the  refusal  of  his  successor  to  approve  the 
treaty.  President  Grant  proposed  the  purchase  of  San 
Domingo,  and  made  a  treaty  for  its  acquisition,  not  rati- 
fied by  the  Senate  from  motives  of  expediency.  The  Uni- 
ted States  is  a  nation  with  all  inherent  powers  as  such.4 
Brought  thus  under  national  power  lawfully,  these  Fili- 
pinos and  Puerto  Ricans  are  "persons,"  "free  inhabitants," 
though  not  citizens,  and  entitled  under  the  silent  principles 
of  our  government  to  the  rights  which  belong  to  persons. 
It  is  true  these  people  are  subject  to  the  power  of  Congress 
as  to  government.5  Strictly  speaking,  we  can  assign  no 
limit  otherwise  to  the  power  of  Congress  over  the  terri- 
tories except  that  found  in  the  Fifth  and  Sixth  Amend- 
ments, but  they  bear  sway  wherever  the  flag  waves  over 
territory  within  the  civil  jurisdiction  of  the  United  States. 
Those  amendments  tie  the  hands  of  Congress  wherever  it 
makes  laws  for  civil  government.  Justice  Brewer  so 
declared.6  The  Constitution  stretched  over  these  islands 
the  moment  they  became  territory  of  the  nation  to  give 
them  freedom,  just  as  the  Thirteenth  Amendment  abol- 

*  Legal  Tender  Cases,  12  Wall.  554;  Chinese  Extra.  Case,  130  U.  S. 
581. 

s  Bank  v.  County,  101  U.  S.  129;  Murphy  v.  Ramsey,  114  U.  S. 
44;  Thompson  v.  Utah,  170  U.  S.  346;  American  Ins.  Co.  v.  Carter, 
1  Pet.  511  ;  Scott  v.  Jones,  5  How.  343;  Stewart  v.  Kahn,  11  Wall. 
607. 

e  Fong  Yue  v.  U.  S.  149  U.  S.  739. 


THK     ruLKTEEXTH     AMEXDUEM.  37 

slavery  at  once  in  Alaska,  as  held  in  In  re  Sah 
Quah.7  The  proclamations  of  President  McKinley  have 
declared  and  admitted  these  principles  of  free  government 
as  the  right  of  the  Filipinos  and  Puerto  Ricans.  He  so 
directed  the  military  commander  and  the  commissioners 
sent  to  the  Philippine  Islands.  So  this  governmental 
action  concedes  this  doctrine.  When  Congress  shall  admit 
these  islands  as  states,  if  ever,  their  people  become  citizens, 
because  the  act  of  admission  would  be  a  collective  act  of 
naturalization.8  This  latter  point  might  be  admitted  as 
sound  before  the  Fourteenth  Amendment,  but  as  a  little 
questionable  since,  as  that  amendment  declares  who  are 
citizens,  limiting  them  to  natives  or  naturalized  persons; 
still  it  seems  that  the  amendment  made  no  difference  in 
the  power  to  make  citizens  by  treaty  or  the  admission  of 
states.9 

Aliens  may  be  Totally  Excluded  by  the  United  States, 
and  treaties  admitting  them  may  be  repealed  so  far  as 
their  future  rights  are  concerned.  It  is  an  inherent  and 
inalienable  right  of  every  sovereign  nation.  Hence  we 
can  repeal  naturalization  laws  or  modify  them  as  we 
choose.* 

After  writing  the  above  I  observe  that  the  illustrious 
Chief  Justice  Marshall,  who  stands  without  a  peer  in 
American  jurisprudence,  and  whose  judgment  very  few 

7  31  Fed.  327.  See  Capital  Traction  v.  Hof,  174  U.  S.  1 ;  Thomp- 
son v.  Utah,  170  U.  S.  343. 

sBoyd  v.  Thayer,  143  U.  S.  135;  Bolln  v.  Nebraska,  176  U.  S. 
83,  20  Sup.  Ct.  R.  287;  Contzen  v.  U.  S.  179  U.  S.  191,  21  Sup.  Ct.  98. 

»Boyd  v.  Thayer,  143  U.  S.  135;  Bolln  v.  Nebraska,  176  U.  S. 
03,  20  Sup.  Ct.  R.  287. 

•Chinese  Exclusion  Case,  130  U.  S.  581;  Fong  Yue  Ting  v.  U.  S. 
14'.'  1.  8.  098;  Wong  Wing  v.  U.  S.  163  U.  S.  228. 


38  RIGHTS    AND    PRIVILEGES    UXDER 

would  assume  to  controvert,  declared  in  The  Insurance 
Company  v.  Canter,10  that  as  the  government  had  power 
to  make  war  and  treaties,  this  carried  along  also  the  power 
"of  acquiring  territory  by  conquest  or  treaty." 

In  the  convention  which  framed  the  articles  of  Con- 
federation, the  proposition  was  made,  that  "states  law- 
fully arising  within  the  limits  of  the  United  States, 
whether  from  voluntary  junction  or  otherwise,"  might 
be  admitted  into  the  Confederation;  but  it  was  rejected, 
and  the  broad  proposition  found  in  Article  XII  was 
adopted,  that  is,  that  Canada  might  be  admitted  into  the 
Union,  "but  no  other  colony  shall  be  admitted  into  the 
same  unless  such  admission  be  agreed  to  by  nine  states," 
thus  plainly  contemplating  the  further  acquisition  of  terri- 
tory. Who  will  deny  that  the  sovereign  states,  before 
going  into  the  Union,  could  have  acquired  territory  by 
conquest  or  treaty  ?  Then,  can  not  a  nation  formed  by  all 
the  states  as  fully  do  so?  As  strict  a  constructionist  of 
federal  power  as  was  the  great  constitutional  lawyer,  John 
Randolph  Tucker,  he  asserts  this  power  of  acquisi- 
tion of  territory  squarely  in  his  recent  work.11  I  will 
add  that  the  doctrines  enunciated  in  the  Dred  Scott  Case12 
concede  and  support  this  power  of  acquisition.  The  pres- 
ent Constitution,  Article  IV,  Section  3,  says  "new  states 
may  be  admitted  by  the  Congress  into  this  Union."  This 
contemplates  expansion  of  territory.  It  could  not  have 
been  contemplated  for  all  time  that  states  thereafter 
admitted  must  necessarily  come  from  territory  then 
owned  by  the  Union. 

10  1  Peters,  542. 

11  2  Tucker  on  Const! tu.  605. 

12  19  How.  393. 


Till-}     l-'OLRTEEMH      .U/A'.Y />.!//•;  AT.  39 

And  as  to  the  power  of  Congress  to  govern,  Article  IV, 
Section  3,  Clause  2,  is  all-sufficient.  "The  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  and  other  property  of 
the  United  States."  This  plainly  contemplated  further 
acquisition  of  territory,  and  gave  Congress  full  power 
of  government  over  the  same.  This  full  power  of  Con- 
gress to  govern  territory  results  not  only  from  this  clause 
of  the  Constitution,  but  is  abundantly  sustained  by  de- 
cisions.13 But  such  government  must  be  tempered  with 
the  guards  and  protection  of  personal  liberty  found  in 
the  federal  Constitution.14  Some  additional  cases  are 
given  in  the  footnote  for  reference.15 

The  treaty  of  Paris  between  the  United  States  and 
Spain,  closing  the  Spanish- American  War,  provides  that 
all  persons  born  in  the  Spanish  peninsula,  that  is,  in  Spain, 
resident  in  the  Philippine  Islands  and  Puerto  Rico,  who 
should  elect  to  continue  to  reside  in  those  islands,  after  a 
certain  time  should  be  deemed  citizens  of  the  United  States 
and  entitled  to  all  the  privileges  and  immunities  of  citi- 
zens of  .the  United  States ;  but  there  is  no  such  provision 
as  to  the  natives  of  those  islands.  They  are  left  by  the 
treaty  subject  to  the  regulation  of  Congress.  When  Con- 
gress shall  organize  a  civil  or  territorial  government 

is  Mormon  Church  v.  U.  S.  136  U.  S.  1,  44;  National  Bank  v. 
County  of  Yankton,  101  U.  S.  129,  133;  Murphy  v.  Ramsay,  114 
U.  S.  14,  44;  U.  S.  v.  Gratiot,  14  Pet.  533;  Cross  v.  Harrison,  16 
How.  180;  U.  S.  v.  Kagama,  118  U.  S.  380. 

i*  Thompson  v.  .Utah,  170  U.  S.  343;  American  Pub.  Co.  v. 
Fisher,  166  U.  S.  464. 

is  Green  v.  Biddle,  8  Wheat.  1;  Cope  v.  Cope,  137  U.  S.  682; 
Shively  v.  Bowlby,  152  U.  S.  48 :  U.  S.  v.  Wong  Kim  Ark,  169  U.  S. 
705:  I'.oyd  v.  Thayor.  143  U.  S.  135:  Wong  Wing  V.  U.  S.  163  U.  S. 
228:  McAllister  v.  V.  S.,  141  U.  S.  174. 


40  RIGHTS    AND    PRIVILEGES    UNDER 

there,  I  should  say  that  the  act  of  185016  would  at  once 
extend  over  the  territory  covered  by  such  organized  govern- 
ment, the  Constitution  and  the  laws  of  the  United  States. 

I  do  not  assert  that  while  a  state  of  insurrection  and  re- 
bellion and  war  exists  in  those  islands,  the  principles  of 
the  Constitution  prevail  as  in  peace;  but  I  do  say  that 
when  peace  shall  again  reign  there,  the  principles  of  Amer- 
ican law  for  the  protection  of  life,  liberty  and  property 
will  reign  there  also. 

It  has  been  held  that  the  Seventh  Amendment,  secur- 
ing trial  by  jury  in  common-law  cases  where  the  value  in 
controversy  is  over  twenty  dollars,  applies  to  the  terri- 
tories, as  recognized  by  the  Supreme  Court  in  Black  v. 
Jackson,17  citing  Webster  v.  Reed.18  In  Reynolds  v.  U. 
S.19  it  is  stated  that  the  Sixth  Amendment  to  the  federal 
Constitution  giving  jury  trial  in  criminal  cases  applies  to 
the  territories.  In  another  important  case20  the  opinion 
of  the  court  say*:  "Doubtless  Congress,  in  legislating  for 
the  territories,  would  be  subject  to  those  fundamental 
limitations  in  favor  of  personal  rights  which  are  formu- 
lated in  the  Constitution  and  its  amendments ;  but  these 
limitations  would  exist  rather  by  inference  and  the  general 
spirit  of  the  Constituton,  from  which  Congress  derives 
all  its  powers,  than  by  any  express  and  direct  application 
of  its  provisions." 

I  should  remark  here  that  these  rights  of  persons  in  the 
territories,  or  in  the  unorganized  territory,  of  the  United 

is  Revised  Stat.   §1891. 

i?  177  U.  S.  363. 

is  Webster  v.  Reed,  1 1  How.  437. 

i»  Reynolds  v.  U.  S.  98  U.  S.  54. 

20  Mormon  Church  v.  V.  S.  136  U.   S.    1,  44. 


THE     FOURTEENTH     AMENDMENT.  41 

States,  arise  from  the  Sixth  and  Seventh  Amendments, 
not  from  the  Fourteenth  Amendment,  because  the  former 
amendments  bind  the  nation,  while  the  latter  binds  only 
the  states;  still,  as  the  subject  is  one  of  due  process  of 
law  for  the  security  of  personal  right,  it  is  germane  to 
the  character  of  this  work. 

I  have  no  doubt  that  the  conquest  of  these  islands,  con- 
summated and  ratified  by  the  international  contract  called 
a  treaty,  did  convert  these  islands  from  foreign  countries 
to  non-foreign  countries,  and  did  incorporate  them  into 
the  territory,  nationality  and  jurisdiction  of  the  United 
States,  so  as  to  make  them  a  part  of  its  territory  and 
within  its  jurisdiction;  but  they  were  not  like  Virginia, 
original  states  or  republics,  and  did  not,  like  her,  entei; 
into  the  Union,  and  did  not,  like  Missouri,  enter  that 
Union  by  congressional  admission.  These  are  the  only 
processes  by  which  a  state  can  be  a  member  of  the  Union. 
Hence  it  is  impossible  to  say  that  these  possessions  have 
statehood;  but  thence  it  does  not  follow  that  they  are 
not  a  part  of  the  domain  and  under  the  jurisdiction  of  the 
nation ;  for,  if  so,  the  treaty  has  no  force.  It  has  a  legal 
force ;  that  is,  to  incorporate  those  islands,  not  only  into 
the  territorial  domain  of  the  United  States  as  a  nation, 
but  also  into  its  nationality,  its  jurisdiction.  "By  the 
ratification  of  the  treaty  California  became  a  part  of  the 
United  States."21  So  with  these  islands.  This  puts  them 
under  the  power  of  Congress,  which,  under  the  Constitu- 
tion, must  give  free  government  in  form  and  substance 

21  Cross  v.   Harrison,   16  How.   164,   191;    Loughbrough  v.   Blake, 
5    Wheat.   317. 


42  RIGHTS    AND    PRIVILEGES    UNDER 

republican,  because  our  Constitution  knows  no  other  in 
peace.  War  is  an  exception.  Inter  arma  silent  leges. 
In  a  case  decided  in  May,  1900,22  in  the  United  States 
Circuit  Court  of  New  York,  is  an  able  opinion  by  Judge 
Townsend,  coming  to  me  since  the  above  matter  was  writ- 
ten, in  wrhich  the  subject  is  fully  discussed  upon  the  ques- 
tion whether  the  Dingley  Tariff  Act  warrants  the  charge 
of  duties  on  imports  from  Puerto  Rico.  That  act  im- 
poses tariff  on  articles  "imported  from  foreign  countries." 
Is  Puerto  Rico,  since  the  Paris  treaty,  a  foreign  country 
so  as  to  justify  such  charge?  The  court  held  that  the 
island  was  by  the  treaty  "acquired,"  but  not  "incorpo- 
rated" into  the  nation,  and  hence  for  this  purpose  was 
still  a  "foreign"  country.  The  reasoning  does  not  seem 
conclusive.  Its  basis  is  largely  that  of  Fleming  v.  Page,23 
holding  that  goods  from  a  Mexican  port  held  by  our  forces 
in  war,  but  restored  to  Mexico  by  the  treaty  of  peace,  was 
for  the  time  land  of  the  United  States  by  conquest,  a  part 
of  its  territory,  and  yet  not  so  far  as  to  exempt  from  tariff, 
and  if  this  is  so,  wrhy  not  the  same  as  to  Puerto  Rico  ?  I 
answer  that  one  was  transient  occupation  during  war, 
provisional  at  most;  the  other  possession  with  legal  title 
under  law  of  war  and  peace,  forever.  There  is  a  differ- 
ence. Congress  seems  to  have  taken  a  different  view  from 
Judge  Townsend's  view,  as  it  passed  a  temporary  tariff 
act  for  Puerto  Rico.  My  view  is  that  it  is  not  a  "foreign" 
country  under  antecedent  tariff  law,  and  that  to  subject 
it  to  tariff  there  must  be  an  express  act.  Whether  Con- 
gress can  constitutionally  pass  such  act  under  its  power 

22  Goetze  &  Co.  v.  U.  S.  103  Fed.  72. 
239  How.  603. 


THU     FOURTEENTH     AMENDMENT  43 

to  govern  territories,  or  Puerto  Eico  being  a  part  of  the 
nation,  it  is  prohibited  by  the  provision  that  "all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the 
United  States,"  is  a  question  not  yet  decided.  It  seems 
to  me  of  doubtful  constitutionality;  but  I  venture  no 
final  opinion.  Judge  Townsend,  while  rendering  the  above 
decision,  concedes  the  position  above  stated  by  me,  that 
the  Constitution  does  give  civil  rights  to  these  island- 
ers, that  it  guarantees  them  republican  government,  and 
that  its  people  are  not  American  citizens.  They  are  not 
subjects,  as  if  we  were  a  monarchy.  Our  Indians,  though 
not  citizens,  are  not  accounted  subjects.  A  name  exactly 
representing  their  condition  is  not  at  hand.  These  island- 
ers are  people  under  our  nationality  and  jurisdiction,  sub- 
ject to  the  government  of  Congress,  which  is  limited  only 
by  the  obligation  to  secure  them  free  republican  govern- 
ment and  according  them  civil  rights  consistent  there- 
with. 

Hawaiians  can  not  be  naturalized,  because  not  white 
persons,  but  Malayans.24 

But  the  treaty  of  annexation  makes  them  citizens. 

Burmese,  being  Mongolians,  can  not  be  naturalized.25 

Corporations  are  not  citizens.26  Though  not  citizens, 
their  property  rights  are  protected  as  if  they  were  persons. 
They  are  treated  as  persons*  for  that  purpose  under  the 
Fifth  and  Fourteenth  Amendments.27  They  are,  how- 
ever, citizens  of  the  state  of  incorporation  under  clause 
of  Constitution  authorizing  a  citizen  of  one  state  to  sue  a 

24  Re  Kenaka,  21  Pac.  993. 

25  In  re  Po,  28  N.  Y.  383. 

20  Paul  v.  Virginia,  8  Wall.  168. 
27Covington  v.  Sanford,  164  U.  S.  578. 


44  RIGHTS    AND    PRIVILEGES    UNDER 

citizen  of  another  in  the  federal  court,28  and  so  far  as 
concerns  removal  of  suits  from  state  to  federal  courts.29 
A  corporation  of  one  state  can  not  do  business  in  another 
state,  except  federal  business,  without  the  latter's  con- 
sent, at  least,  against  its  prohibition.  It  may  impose  con- 
ditions.30 But  a  natural  person  is  entitled  to  do  lawful 
business  in  his  own  or  another  state  without  such  consent, 
by  force  of  the  federal  Constitution  under  the  commerce 
clause,  Article  1,  Section  8,  Clause  3,  and  Article  4,  Sec- 
tion 2. 

28  R.  R.  Co.  v.  Whitton,  13  Wall.  270. 

2»  Martin  v.  B.  &  O.  Co.   151   U.  S.  673. 

so  St.  Clair  v.  Cox,  106  U.  S.  350;    Slaughter's  Case,  13  Grat.  767. 


TED    FOURTEENTH     AMENDMENT.  45 


Chapter  4. 


PRIVILEGES   AND   IMMUNITIES. 

We  come  now  to  provisions  of  the  amendment  of  greater 
importance  and  more  difficult  of  application  than  that  re- 
lating to  citizenship.  We  refer  to  the  prohibition  against 
the  states  from  abridging  the  privileges  or  immunities  of 
citizens,  or  depriving  persons  of  life,  liberty  or  property 
without  due  process  of  law,  or  denying  them  equal  protec- 
tion of  the  laws.  What  is  the  meaning  of  Section  1  of 
this  great  amendment  as  to  those  matters?  This  is  a 
difficult  question  to  answer.  In  truth,  no  general  exact 
rule  can,  in  advance,  be  drafted  giving  its  meaning.  It 
would  be  extremely  dangerous  for  a  court  to  tie  itself  down 
to  an  inflexible  rule  herein.  The  general  purposes  to  be 
subserved  seem  plain;  but  application  of  the  provisions 
to  cases  can  not  beforehand  be  pointed  out  by  any  stated 
rule.  Speaking  of  privileges  and  immunities  the  United 
States  Supreme  Court  has  refused  to  define  them  in  ad- 
vance,! preferring  to  decide  each  case  as  it  comes.1  The 
Supreme  Court  has  further  said  that  the  construction  of 
these  provisions  must  be  "a  gradual  process  of  judicial 
inclusion  and  exclusion,"  as  time  goes  on.? 

Conner  v.  Elliott,  18  How.  591. 
2  Davidson  v.  X.  Orleans,  96  U.  S.  104. 


46  RIGHTS    AXD    PRIVILEGES    UNDER 

Numerous  cases  under  this  amendment  have  blazed  the 
way  to  a  considerable  extent,  but  have  not  made  a  broad, 
clear  highway.  Its  construction  is  still,  after  thirty  years, 
in  a  chrysalis  state,  in  process  of  evolution,  and  will  long 
continue  to  be.  Courts  may  lay  down  some  general  prin- 
ciples under  it;  but  they  will  be  only  approximately  ac- 
curate, though  very  useful  in  future  time.  We  must  ap- 
ply it  to  each  case  as  it  comes,  guided,  as  far  as  can  be, 
by  prior  decisions. 

To  Whom  it  Applies. — The  amendment  applies  only  to 
state  governmental  action.  Its  first  section  does  not  oper=- 
ate  upon  the  federal  government,  but  on  that  of  the  states 
it  does;  nor  does  it  have  any  reference  to  action  or  con- 
duct of  individual  to  individual.3  That  it  is  a  restraint 
upon  state  action  is  very  obvious  from  its  words,  they 
being  words  of  explicit  prohibition.  "jSTo  state  shall" 
do  the  things  prohibited.  And  Section  5  gives  Congress 
power  to  enforce  the  amendment  by  appropriate  legisla- 
tion. And  the  Constitution  of  the  United  States  is  the 
highest  law  of  the  land.  Thus  it  is  undeniable  that  the 
federal  government  can  and  should,  under  this  amend- 
ment, in  proper  cases,  use  all  its  machinery  for  the  vin- 
dication of  the  rights  by  it  sought  to  be  protected. 

Authorities  to  Enforce  Amendment. — It  is  the  duty  of 
the  courts  and  other  agencies  of  state  administration  to 
recognize  and  concede  the  rights  intended  to  be  protected 
by  the  amendment,  in  the  first  instance,  in  transactions 
presented  for  their  action,  without  waiting  for  interven- 
tion by  federal  courts,  the  federal  Constitution  being  the 

3  Civil  Rights  Cases,  109  U.  S.  23;  Paul  v.  Va.  8  Wall.  168;  Va. 
v.  Rives,  100  U.  S.  318;  U.  S.  v.  Cruikshanks,  02  U.  S.  542,  95 
Fed.  849. 


THE     FOURTEENTH     AMENDMENT.  47 

highest  law  ruling  state  and  federal  tribunals.  It  is 
prohibitory  upon  the  states  to  deny  those  rights,  and  there- 
fore it  is  plainly  the  duty  of  the  courts  and  other  authori- 
ties of  the  state  to  concede  and  vindicate  such  rights  where 
they  exist.4  The  right  to  pass  finally  on  .the  question 
whether  the  state  has  infracted  the  amendment  lies  with 
the  federal  Supreme  Court.5 

;£  No  New  Rights  Granted. — As  elsewhere  stated,  the 
amendment  creates  no  rights  not  existing  before  it.  It 
originates  none.  It  adds  nothing  to  the  catalogue  of  privi- 
leges, immunities,  rights  of  life,  liberty  or  property,  or 
of  equality  before  the  law.  It  does  not  specify  or  define 
any  of  them.  It  only  defends  those  rights  existing  under 
the  law  of  the  land,  federal  or  state,  and  in  being  at  its 
adoption,  or  born  of  the  law  afterwards.  This  is  an  impor- 
tant consideration  in  the  construction  and  application  of 
the  amendment.  It  brings  nothing  new.  It  adds  no 
privileges.  The  things  it  guarantees  are  old.  It  is  only 
Magna  Charta  over  again.  It  only  enjoins  upon  the 
state,  by  the  voice  of  the  highest  law,  the  duty  of  regarding 
and  conceding  certain  cardinal  rights,  and  grants  to  the 
national  government  the  power  to  correct  and  reverse 
their  plain  denial  by  the  action  of  the  state. 

This  is  strongly  illustrated  by  decisions  holding  that 
the  rights  of  suffrage  and  making  a  living  by  practicing 
law  are  neither  granted  nor  protected  by  the  amendment. (i 
What  could  more  strongly  show  that  the  amendment  gave 

4  Xeal  v.  Delaware,  103  U.  S.  370. 

•  Tarble's  Case,  13  Wall.  397;  Cohens  v.  Va.  6  Wheat.  264;  State 
v.  .^pouagle,  45  W.  Va.  415,  32  S.  E.  283. 

•••  Minor  v.  Happersett,  21  Wall.  162;  In  re  Lockwood,  154  U.  S. 
116. 


48  RIGHTS    AND    PRIVILEGES    UNDER 

no  new  rights  than  the  principle  settled  by  many  cases  that 
"due  process  of  law"  means  the  same  as  the  words  "law 
of  the  land"  in  old  Magna  Charta  ?7 

7  Murray  v.  Hoboken,  18  How.  276. 


THE    FOUKTEESTH.     AMENDMENT. 


Chapter  5, 


UNITED  STATES   SUPREME   COUKT  DECIDES 
FINALLY. 

The  question  naturally  arises,  Who  is  to  say,  finally, 
whether  given  action  of  a  state  is  violative  of  the  Four- 
teenth Amendment  ?  I  answer,  the  Supreme  Court  of  the 
United  States.  Very  soon  after  the  adoption  of  the  Con- 
stitution arose  the  questions,  Is  it  with  the  national  or  the 
state  judiciary  to  say  whether  the  Union  has  exceeded  its 
powers,  or  whether  a  state  statute  is  repugnant  to  the 
federal  Constitution  ?  Has  the  state  or  the  nation  right 
to  answer  finally  ?  These  great  questions  engendered  an 
intense,  acrimonious  discussion,  involving  vitally  the  rela- 
tions of  the  national  and  state  governments.  No  graver 
questions  could  be  put  upon  the  subject.  Chief-Justice 
Marshall  did  not  overdraw  when  he  said,  in  Cohens  v.  Vir- 1 
ginia,1  that  the  fate  of  the  Union  hung  upon  the  answer. 
Very  eminent  contention  was  made,  no  less  than  resolu- 
tions of  the  Kentucky  and  Virginia  legislatures,  called  the 
"Kentucky  and  Virginia  Resolutions  of  1798,"  that  the 
federal  government  had  not  right  to  pass  conclusively 
on  the  relative  extent  of  federal  and  state  power.  The 
Kentucky  resolutions,  written  by  Thomas  Jefferson,  in 

i  6  Wheat.  377. 


50  RIGHTS    AND    PRIVILEGES    UNDER 

terms  said  of  the  federal  government  that  "this  govern- 
ment, created  by  this  compact,  was  not  made  the  exclusive 
or  final  judge  of  the  extent  of  the  powers  delegated  to  it- 
self, since  that  would  have  made  its  discretion,  not  the 
Constitution,  the  measure  of  its  powers,  but  that,  as  in 
all  other  cases  of  compact  among  parties  having  no  com- 
mon judge,  each  party  has  an  equal  right  to  judge  for 
itself,  as  well  of  infractions  as  of  the  mode  and  measure 
of  redress."  A  resolution  of  Kentucky  in  1799  declared 
that  nullification  by  the  states  of  unauthorized  acts  done 
under  color  of  the  Constitution  was  the  lawful  and  right- 
ful remedy.  The  Virginia  resolutions  were  practically  the 
same.  Mr.  Calhoun  with  great  ability  advocated  this  view 
later.  Even  the  great  unionist,  Andrew  Jackson,  in  pri- 
vate letters,  wavered  as  to  the  final  power  of  decision 
of  the  nation. 

The  opponents  of  this  contention  appealed  to  the  fact 
that  the  Constitution  gave  the  federal  judiciary  jurisdic- 
ion  of  "all  cases  in  law  and  equity  arising  under  this  Con- 
stitution, the  laws  of  the  United  States  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,"  and  to  the 
provision,  "This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  state  shall  be  bound  there- 
by, anything  in  the  constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding."  They  asked,  "Who  shall  be 
the  final  judge  of  its  own  powers  but  that  government 
whose  constitution  and  laws  are  thus  made  supreme,  and 
whose  courts  are  given  jurisdiction  of  all  cases  arising 


FOURTEENTH     Alti;MJMi:.\T.  51 

under  them,  of  course,  with  power  to  decide?"  They  said 
that  there  must  be  a  final  arbiter  in  dispute,  else  chaos, 
red  war  and  disunion  would  reign,  and  that  reason  for- 
bade the  idea  that  there  should  be  as  many  conflicting  ar- 
biters as  there  were  states,  and  demanded  that  there  be 
one  final  judge,  and  that  the  national  supreme  court; 
otherwise  the  Constitution  would  be  one  thing  in  one 
state,  another  in  another.  "Thirteen  independent  courts 
of  final  jurisdiction  over  the  same  causes,  arising  upon 
the  same  laws,  is  a  hydra  in  government  from  which 
nothing  but  contradiction  and  confusion  can  proceed,1' 
said  an  eminent  statesman.  The  latter  theory  carried  the 
day.  It  received  support  from  many  able  sources,  notably 
from  Alexander  Hamilton  in  that  wonderful  work, 
"The  Federalist,"  which,  as  Mr.  William  L.  Wilson 
says  in  his  work,  "The  National  Democratic  Party," 
page  25,  "was  written  chiefly  by  two  young  statesmen, 
one  of  Xew  York  (Hamilton),  the  other  of  Virginia 
(Madison),  to -explain  and  commend  to  their  contem- 
poraries in  that  great  struggle,  the  new  plan  of  gov- 
ernment, but  remaining  today,  and  doubtless  destined  to 
ren. inn  for  all  time,  the  most  instructive  commentary  on 
the  federal  Constitution."  The  doctrine  was  also  most 
ably  supported  by  the  great  opinion  by  Chief -Justice  Mar- 
shall in  Cohen  v.  Virginia.2  This  right  of  the  national 
court  to  pass  final  judgment  in  the  case  supposed  above 
has  come  to  be  settled  doctrine  from  many  cases.3  Let 

2  6  Wheat.  264. 

sAbleman  v.  Booth,  21  How.  506;  Tarble's  Case,  13  Wall.  397; 
State  v.  Hunt,  2  Hill  (S.  C.)  1;  In  re  Spangler,  11  Mich.  299; 
State  v.  Sponagle,  45  W.  Va.  415:  Laughlin  v.  La.  Ice  Co.  35  La. 

Ann.  1184:    Klliot     v.  McC'ornm-k.  144  Mass.  10. 


52  RIGHTS    AND    PRIVILEGES    UNDER 

men  differ  as  they  may  upon  the  abstract  merits  of  the 
question,  our  political  and  legal  history  will  attest  that 
the  course  of  time,  from  many  causes,  has,  since  the  foun- 
dation of  the  government,  given  a  trend  towards  large 
national  power.  Such  has  been  the  evolution  of  time  and 
events.  The  great  Civil  War  has  set  the  final  seal  upon 
this  great  question  so  much  debated  through  so  many 
years.  If  such  was  the  solution  of  that  debate  on  the  ros- 
trum and  in  the  forum  upon  the  Constitution  as  it  was 
before  the  Fourteenth  Amendment  came,  it  is  plainer  still 
that  it  is  exclusively  with  the  supreme  court  of  the  nation 
to  say,  finally  and  decisively,  whether  given  action  of  a 
state  violates  that  amendment,  since  its  adoption;  for  it 
is  not  only  prohibitory  upon  the  states,  saying  that  the 
states  shall  not  do  certain  things,  but  its  fifth  section 
gives  Congress  express  power  to  enforce  the  amendment  by 
appropriate  legislation.  It  being  a  part  of  the  Constitu- 
tion, all  rights  protected  under  it  are  questions  arising 
"under  this  Constitution,"  and  come  within  the  pale  of 
jurisdiction  of  federal  courts  under  Section  2,  Article  3. 
"State  Rights." — This  short  historical  reference  to  the 
great  questions  of  the  past  will  serve  to  show  that  the  ex- 
pression "state  rights,"  though  still  much  used,  is  not  in 
our  day  what  it  was  many  years  ago.  In  those  years  it 
meant,  in  short,  that  as  the  states  before  the  formation 
of  the  Constitution  were  sovereign,  as  such  they  formed 
it,  not  losing  thereby  that  sovereignty,  and  the  Union 
under  the  Constitution  was  not  in  strict  sense  a  nation, 
but  still,  as  under  the  Articles  of  Confederation,  a  mere 
compact  or  confederation  of  states,  though  with  some 
greater  powers,  and  that  the  states  possessed  the  power, 


THE     FOURTEENTH     AMENDMENT.  53 

without  secession  from  the  Union,  for  causes  to  them  seem- 
ing sufficient,  to  ignore  and  nullify  federal  laws,  or  with- 
draw from  the  Union,  and  altogether  cease  their  federal 
relation,  cease  to  perform  their  functions  as  component 
members  of  the  Union.  This  was  not  justified  on  the 
right  of  revolution,  which  all  people  have,  if  based  on 
just  cause,  but  on  a  power  claimed  as  inherent  in  the  states, 
which  might  be  of  right  exercised,  and  could  not  be  of 
right  resisted  by  the  Union  or  any  of  its  members.  Un- 
der this  claim  of  right,  a  claim  made  by  the  great  ma- 
jority of  the  people  of  the  slave-holding  states,  eleven  of 
them  withdrew  from  the  Union  in  1861,  and  then  came 
the  Civil  War.  The  other  view  in  those  days  was  that 
of  inter-independence  or  co-independence  between  states 
and  Union,  and  conceded  to  the  states  their  sovereignty 
within  their  sphere  under  the  Constitution,  and  the  sov- 
ereignty of  the  Union  within  its  sphere  under  the  Con- 
stitution, and  in  case  of  dispute  as  to  their  respective 
powers  the  Union  was  to  be  the  final  judge.  Such  is  now 
the  doctrine  held  by  the  supreme  court,  as  laid  down  in 
Tarble's  Case4  and  many  prior  cases,  and  generally  con- 
ceded. 

Xowadays  "state  rights"  merely  indicates  a  principle 
of  construction  of  the  federal  Constitution  as  to  the  re- 
spective powers  of  state  and  nation,  and  does  not  claim 
the  right  of  nullification  or  secession,  but  admits  the  pow- 
ers of  the  federal  government  plainly  granted  in  the  Con- 
stitution, and  also  such  powers,  though  not  expressly  there 
granted,  as  are  plainly  indispensable  to  enable  the  nation 
to  execute  the  powers  that  are  expressly  granted;  that 

*  13  Wall.   307. 


54  RIGHTS    AND    PRIVILEGED    LXDER 

no  power  in  the  nation  can  be  exercised  unless  granted 
in  very  letter,  not  by  mere  construction,  and  that  no 
power  claimed  as  a  power  by  implication  to  execute  a 
conceded  express  power  can  be  allowed  unless  it  be  abso- 
lutely essential  to  carry  out  an  expressly  granted  power, 
so  essential  that  without  it  such  expressly  granted  power 
could  not  be  executed  by  the  nation ;  and  that  where  there 
is  doubt  it  must  be  resolved  in  favor  of  the  state,  and  the 
power  denied  to  the  nation.  It  is  now  merely  a  differ- 
ence between  a  literal  and  rigid  construction  of  the  Con- 
stitution, and  a  liberal  one  as  to  the  powers  of  the  federal 
government.  Constitutional  state  rights  nobody  denies, 
nor  does  anybody  deny  constitutional  federal  rights;  the 
only  difference  is  in  the  ascertainment  of  what  are  con- 
stitutional state  rights  and  what  are  constitutional  na- 
tional rights.  So  long  as  we  preserve  our  dual  system  of 
government  both  must  be  scrupulously  observed,  and  as 
the  final  decision  is  with  the  federal  supreme  court,  we 
see  how  important  and  grave  are  its  functions.  The  fate 
of  the  Union  must  hang  upon  it. 

Amendment  Retroactive  and  Self-Enforcing — A  state 
statute  or  constitution  not  repugnant  to  any  constitutional 
provision  of  the  nation  when  made  is  nevertheless  annulled 
by  the  amendment,  if  it  conflicts  with  it;  for  no  pro- 
ceeding can  take  place  under  the  state  constitution  or 
statute  if  its  effect  is  to  deprive  anyone  of  a  right  se- 
cured by  that  amendment.1 

It  needs  no  legislation  to  nullify  a  state  law  contrary 
to  the  Fourteenth  Amendment,  but  it  by  its  own  force 

i  Kaukanna  v.  Green  Bay,  142  U.  S.  254;  Davis  v.  Burke,  179  I  .  S. 
399,  21  Sup.  Ct.  210. 


THU     FOURTEENTH     AMEXDME\T.  55 

iiulliiies  the  state  law.2  "A  constitutional  provision  is 
self -operative  where  no  legislation  is  necessary  or  could 
add  to  or  take  from  it."  3 

First  Ten  Amendments. — It  was  earnestly  contended  in 
u  late  case  that  though  it  had  been  often  held  that  the  first 
ten  amendments  to  the  federal  Constitution  bound  only 
the  federal  government,  and  not  state  action,  and  did  not 
confer  rights  and  privileges  which  from  those  amendments 
the  states  were  bound  to  concede,  yet  that  the  very  adop- 
tion of  the  Fourteenth  Amendment  changed  all  this,  and 
made  those  amendments  obligatory  on  the  states ;  but  the 
court  took  the  other  view,  and  held  that  it  did  not  make 
those  amendments  operate  on  the  states.  Justice  Harlan 
in  a  labored  dissent  held  that  because  Amendment  Six 
guaranteed  a  trial  by  jury,  meaning  a  jury  of  twelve,  a 
state  could  not  by  its  constitution  make  the  jury  consist  of 
less,  and  this  because,  as  he  thought,  the  amendment  ope- 
rated to  make  those  amendments  act  on  the  states.4 

2  Xeal  v.  Delaware,  103  U.  S.  370. 

s  State  v.  Caldwell,  69  Am.  St.  R.  465. 

*  Spies  v.  Illinois,  123  U.  S.  131 ;    Bolln  v.  Nebraska,  176  U.  S.  83. 


56  RIGHTS    AND    PRIVILEGED    UXDtiH- 


Chaptcr  6. 

PKIVILEGES  AND  IMMUNITIES.     WHAT  PKO- 
TECTED ? 

Not  those  that  pertain  to  state  citizenship.  They  must 
look  to  state  constitutions  and  laws  for  protection ;  for  the 
Fourteenth  Amendment  says  that  "No  state  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States/7  thus  limiting 
the  protection  to  privileges  and  immunities  of  United 
States  citizenship.  As  elsewhere  stated,  there  is  state  cit- 
izenship, there  is  national  citizenship.  There  are  privi- 
leges and  immunities  flowing  from  state  citizenship,  con 
sidered  separately  from  national  citizenship,  and  privi- 
leges and  immunities  flowing  from  national  citizenship 
They  are  different.,4  The  amendment,  having  created  na- 
tional citizenship,  next  defends  it  against  abridgment  by 
the  states;  but  it  has  not  assumed  the  defense  of  those 
privileges  and  immunities  attending  upon  state  citizen- 
ship alone.5 

"There  is  in  our  political  system  a  government  of  each 

*U.  S.  v.  Cruikshanks,  92  U.  S.  542;  Duncan  v.  Missouri,  152 
Id.,  377. 

s  Slaughter  House  Cases,  16  Wall.  36;  Holden  v.  Hardy,  169 
U.  S.  366,  25  Am.  St.  R.  871;  Bradwell  v.  U.  S.  16  Wall.  130;  U.  S. 
v.  Cruikshank,  92  U.  S.  552. 


THE     FOURTEENTH      AM  t:\DUEXT.  57 

of  the  several  states  and  a  government  of  the  United  States. 
Each  is  distinct  from  the  other  and  has  citizens  of  its  own, 
who  owe  it  allegiance  and  whose  rights,  within  its  juris- 
diction, it  must  protect.  The  same  person  may  be  at  the 
same  time  a  citizen  of  the  United  States  and  a  citizen  of 
a  state;  but  his  right  of  citizenship  under  one  of  these 
governments  will  be  different  from  those  he  has  under  the 
other."  "Sovereignty  for  the  protection  of  rights  of  life 
and  personal  liberty  within  the  states  rests  alone  with  the 
states."  So  says  the  Supreme  Court  in  U.  S.  v.  Cruik- 
shank.6 

The  privileges  and  immunities  of  a  state  citizen  derived 
from  state  law  must,  under  this  particular  clause,  be  pro- 
tected by  the  state.  That  citizen  must  look  alone  to  the 
state.  The  privileges  and  immunities  of  a  national  citi- 
zen derived  from  national  law  must  be  conceded  and  pro- 
tected by  the  state  just  as  much  as  if  derived  from  its  own 
laws,  and  if  not  so  protected  and  enforced,  that  citizen  can 
invoke  the  aid  of  the  federal  government.  I  said  "under 
this  particular  clause ;"  for  rights  of  a  state  citizen  given 
by  state  law,  if  rights  of  life,  liberty  or  property  or  equal- 
ity before  the  law,  must  be  protected  by  the  nation  if  de- 
nied by  the  states,  because  of  later  clauses  in  the  amend- 
ment. 

Different  Clauses. — It  must  be  observed  that  it  is  often 
difficult  to  say  certainly  whether  the  thing  claimed  is  a 
"privilege  or  immunity,"  falling  under  the  clause  protect- 
ing them,  or  concerns  life,  liberty,  property  or  equality 
before  the  law,  under  the  later  clauses.  Some  rights  may 
fall  under  more  than  one  clause,  or  would  if  there  were 

•  92  u.  S.  542. 


58  RIGHTS    AND    PRIVILEGES    UNDER 

not  the  several  clauses.  It  may  be  important  to  discrim- 
inate, for  if  the  right  claimed  be  merely  and  only  a  "priv- 
ilege or  immunity/''  properly  so  called,  it  must  rely  only  on 
the  clause  relating  to  them,  which  is  narrower  than  the  sub- 
sequent clauses;  for  it  protects  only  '"privileges  and  im- 
munities of  citizens  of  the  United  States'' ;  whereas  as 
to  life,  liberty  or  property,  it  protects  "any  person/'  and 
as  to  equal  protection  of  the  law,  it  protects  "any  person 
within  its  jurisdiction,"  no  matter  whether  a  citizen  of  the 
nation  or  state,  or  no  citizen  of  either.  This  is  a  point  of 
vital  import  in  the  construction  of  the  amendment,  because 
if  the  distinction  between  national  and  state  citizenship 
is  not  preserved,  every  claim  or  pretense  that  a  citizen 
has  been  deprived  of  a  privilege  would  call  for  federal 
interference.  Otherwise  that  interference  is  limited  to 
cases  of  abridgment  of  privileges  as  a  national  citizen.7 

Privileges  Protected  Further. — It  might  be  thought  at 
first  blush  that  the  intention  was  to  protect  the  national 
citizen  against  abridgment  of  any  of. his  rights,  state  or 
national.  .  Suppose  a  person  who  is  both  a  state  and  na- 
tional citizen,  and  suppose  that  a  privilege  vested  in  him 
by  state  law  is  abridged  by  state  law;  it  might  be  said 
that  it  was  the  purpose  of  the  amendment  to  place  all  of 
his  privileges  and  immunities  under  the  panoply  of  its 
protection ;  and  this  because  he  is  a  citizen  of  the  repub- 
lic, domiciled  within  the  territory  of  the  nation,  and  be- 
cause the  language  is  general,  "no  state  shall  make  or  en- 
force any  law  which  shall  agridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States" ;  but  authori- 
ties hold  that  this  person  can  not  call  upon  the  federal 

t  Slaughter  House  Cases,  10  Wall.  75. 


THE     FOURTEENTH     AMEN  DM  EM.  59 

government  for  help.  This  is  because  the  amendment  ere- 
ates  two  citizenships  in  terms,  and  limits  protection  to 
"privileges  or  immunities  of  citizens  of  the  United  States." 
It  recognizes  hoth  nation  and  state  as  governments,  separ- 
ate governments,  each  possessed  of  sovereign  power  within 
its  sphere,  and  it  leaves  to  the  state  alone  the  protection, 
within  its  territory,  of  the  privileges  conferred  upon  its 
citizens  by  its  laws.  If  the  erroneous  construction  spoken 
of  above  were  held,  a  state  could  hardly  be  said  to  have  any 
attribute  of  sovereignty  or  finality  of  decision;  for  when 
we  grant,  as  we  must,  the  power  of  the  Union  to  see  that  no 
person  shall  be  deprived  of  life,  liberty  or  property  with- 
out due  process,  nor  be  denied  the  equal  protection  of  the 
law,  and  then  add  that  all  privileges  and  immunities  of 
the  citizen  under  both  state  and  federal  law  are  within 
federal  control,  we  make  the  nation  supreme  over  a  vast 
expanse  of  governmental  administration,  leaving  very  little 
for  state  supremacy  or  finality.  The  most  ardent  advo- 
cates of  state  rights  have  always  conceded  certain  powers 
in  the  federal  government  as  essential  to  the  performance 
of  the  functions  assigned  to  it;  and  the  most  ardent  ad- 
vocates of  federal  power  have  always  conceded  certain 
powers  in  the  states  as  essential  to  the  performance  of  their 
functions.  This  must  be  so  just  as  long  as  the  dual  system 
of  federal  and  state  government  mapped  out  in  the  orig- 
inal formation  of  the  federal  government  shall  continue; 
otherwise  revolution,  not  by  arms,  but  by  the  silent  yet 
potent  force  of  judicial  construction  would  ensue.  Equi- 
poise must  be  kept  by  cautious  construction  by  that  great 
court  at  Washington.  Xo  court  on  earth's  orb  has  greater 
responsibility  placed  upon  it.  Our  blessed  government 


60  RIGHTS    AND    PRIVILEGES    UNDER 

was  intended  to  have  eternity.  Its  life  depends  on  that 
court.  Under  guidance  of  Providence  its  ermine  remains 
pure.  Growth  of  population,  growth  of  individual  and 
corporate  wealth,  growth  of  power  under  the  late  amend- 
ments, the  allurements  of  modernism,  many  influences, 
have  all  been  powerless  to  swerve  that  court  from  its  orbit. 
If  in  any  decision  in  times  gone  by  it  did  lose  its  orbit  on 
mighty  questions,  and  likely  it  did  in  one  instance,  it  can 
not  be  said  but  that  its  record  of  the  last  forty  years  shows 
that  its  eye  has  been  fixed  on  the  pole  star  of  sound,  con- 
servative construction  of  the  Constitution,  preserving  the 
equipoise  between  states  and  nation,  and  maintaining  the 
the  just  rights  of  citizen  or  person.  Clamor  has  risen  loud 
and  high  against  it  occasionally;  but  time  and  reflection 
have  hushed  that  clamor  to  sleep.  "Change  and  decay 
011  all  around  we  see,"  but  the  Supreme  Court  has  not 
known  change  or  decay.  Esto  sacra.  Procul  profanum 
vulgus.  An  appeal  to  the  great  number  of  cases  decided 
by  it  involving  the  recent  amendments  to  the  Constitution 
will  warrant  this  eulogy.  Webster  said  that  without  this 
court  the  Constitution  would  be  no  constitution;  the 
Government  no  government. 

In  this  connection,  speaking  of  the  rejection  of  the  con- 
struction placing  all  immunitites  and  privileges,  whether 
under  state  or  federal  law,  under  this  amendment,  it  may 
be  appropriate  to  refer  to  the  case  of  Logan  v.  United 
States.8  It  may  be  said  that  when  that  case  held  that  a 
prisoner  in  the  hands  of  a  federal  marshal  under  federal 
process  had  right  to  be  protected  by  the  United  States 
from  mob  violence,  so  that  those  assaulting  his  person 

s  144  U.  S.  263. 


TUB    FOURTEENTH     AMENDMENT.  Ql 

were  indictable  under  federal  statute  against  conspiracy  to 
"injure,  oppress,  threaten  or  intimidate  any  citizen  in 
the  free  exercise  and  enjoyment  of  any  right  or  privilege 
secured  to  him  by  the  Constitution  or  laws  of  the  United 
States",  the  court  ranked  as  a  privilege  or  immunity 
under  the  amendment  the  right  to  be  secure  from  mere  as- 
sault, battery  and  murder  by  individuals,  and  thus  as- 
sumed for  the  federal  courts  jurisdiction  to  punish  acts 
cognizable  in  state  courts  committed  by  individuals,  when 
the  amendment  only  restrained  state  action,  not  at  all  mere 
individual  action;  but  the  court  disclaimed  any  right  to 
jurisdiction  under  the  amendment.  The  case  is  only  im- 
portant here  as  to  that  point.  It  is  noted  for  that  point. 
The  court  said  that  a  citizen  in  custody  had  right  under 
the  Constitution  and  laws  of  the  United  States  to  be  pro- 
tected from  lawless  violence,  as  the  Constitution  impliedly 
grants  power  to  punish  offences  against  the  United  States. 
There  may  be  question  whether  this  right  of  safety  is  a 
"right  or  privilege"  under  the  Constitution  or  laws  of 
the  United  States,  rather  than  under  state  law;  whether 
that  right  to  protection  against  personal  violence  does  not 
inhere  in  the  individual  as  a  person,  not  as  a  citizen,  and 
whether  in  custody  under  process  or  not,  and  so  to  be  pro- 
tected by  the  state ;  and  whether  the  culprits  were  indict- 
able under  federal  law  only  for  resisting  or  obstructing 
lawful  process,  and  not  for  invading  a  privilege  of  a  nation- 
al citizen  as  such.  Clearly  the  statute  is  defensible  under 
the  amendment  to  prohibit  an  invasion  of  a  privilege  of 
a  citizen  of  the  United  States ;  but  the  quaere  is  whether 
personal  violence  to  a  prisoner  in  custody  under  federal 
process  is  any  more  an  attack  on  a  privilege  or  right  of  a 


Q2  RIGHTS    AND    PRIVILEGES    UNDER 

federal  citizen  than  an  attack  on  a  privilege  of  a  state 
citizen  in  custody  under  state  process,  or  not  in  custody. 
Be  this  as  it  may,  it  is  important  to  say  that  the  case  must 
not  be  cited  to  show  that  the  court  exended  the  Fourteenth 
Amendment  to  the  occurrence  involved  in  the  case. 

The  Need  of  the  Privilege  Clause. — I  concur  with  Judge 
Cooley  in  his  Principles  of  the  Constitutional  Law,  in  the 
opinion  that  this  clause  of  the  amendment  is  not  essential, 
since  state  action,  if  it  were  not  in  the  amendment,  could 
not  abridge  a  privilege  or  immunity  resting  on  national 
right.  The  clause  is  only  declaratory  of  antecedent  law. 
We  may  say  that  the  provision  emphasizes  pre-existing 
law,  imbedding  it  in  the  Constitution  forever,  not  leaving 
it  to  mere  implication  and  court  decision.  It  should  be 
added,  too,  that  the  amendment  expressly  vests  in  Congress 
power  of  legislation  to  protect  federal  privileges  and  im- 
munities. Before  that  amendment,  as  Chief -Justice  Taney 
said,  there  was  no  express  power  in  the  nation  to  enforce 
such  right  if  denied  by  the  state,  and  this  amendment  does 
in  words  confer  the  power ;  but  I  apprehend  that  a  power 
to  protect  federal  privilege  or  immunity  would,  without 
the  amendment,  reside  in  the  federal  judiciary,  and  likely 
in  Congress. 

Privileges  Protected  Further. — The  Fourteenth  Amend 
ment  does  not  protect  privileges  and  immunities  of  citi- 
zens of  the  United  States  against  assault  from  the  national 
government.  Nor  does  it  protect  privileges  and  immuni- 
ties vested  in  a  citizen  of  one  state  by  reason  of  his  citi- 
zenship therein  against  another  state's  action,  as  this  is 
done  by  Article  4,  §2,  "The  citizens  of  each  state  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  of 


THE     FOURTEENTH     AMENDMENT.  03 

the  several  states".    That  provision  is  not  discussed  in  this 
work. 


WHAT  ARE  PRIVILEGES   AOT)  IMMUNITIES? 

Remember,  as  just  stated,  that  we  are  speaking  only  of 
"privileges  and  immunities"  flowing  from  national  citi- 
zenship, not  state  citizenship. 

No  all-comprehensive  classification  can  be  made  in  ad- 
vance. As  was  said  by  the  Supreme  Court9  of  these  two 
words  used  in  Article  4,  §2,  must  be  also  said  of  them  as 
found  in  Amendment  Fourteen,  that  it  is  unwise  to  at- 
tempt such  classification,  but  each  case  must  be  decided 
as  it  conies.  At  the  start,  it  can  be  said  that  it  is  not  every- 
thing that  can  demand  protection  claiming  to  be  a  "privi- 
lege or  immunity".  It  must  be  something  appertaining 
to  the  citizen  that  is  cardinal,  basic,  fundamental,  belong- 
ing to  citizens  of  free  governments.10 

The  privilege  or  immunity  protected  is  only  that  in- 
herent in  and  flowing  from  the  status  of  citizenship,  is 
inseparably  connected  with  it,  personal  to  the  person, 
non-assignable.11  The  words  of  Amendment  Fourteen, 
as  those  of  Article  4,  §2,  show  this  to  be  so. 

Each  Clause  has  Separate  Office. — It  would  seem  that  this 
privilege  clause  does  not  cover  what  the  remaining  clauses 
cover,  life,  liberty,  property  and  equality  before  the  law, 
because,  though  some  would  seem  to  fall  under  two  clauses, 
yet,  in  construction  we  would  infer  that  each  clause  has 

»  Collins  v.   Elliott,  18  How.  591;    Davidson  v.  N.   Orleans,  96 
97. 

i"  Corfu-Id   v.  roryell,  4  Wash.  C.  C.   101. 

11  Slaughter's  Case.  13  Orat.  707:    CYmuT  v.  Elliott,  18  How.  591. 


64  RIGHTS    AND    PRIVILEGES    UNDER 

a  separate  office,  and  that  it  can  not  be  presumed  that  sepa- 
rate clauses  of  one  enactment,  especially  a  sedate  enact- 
ment by  a  constitution,  apply  to  one  and  the  same  thing. 

What  are  Privileges  and  Immunities? — Xo  fixed  gen- 
eral rule  can  be  given ;  no  specification  can  embrace  every 
instance  even  now  existing,  and,  of  course,  not  those  com- 
ing in  future  time,  and  such  rule  or  specification  can  only 
be  illustrative.  We  should  add,  what  is  an  obvious  prin- 
ciple and  important  to  be  remembered,  applicable  to  the 
clause  relative  to  privileges  and  immunities,  and  also 
that  relative  to  protection  to  life,  liberty  and  property, 
that  the  "privileges  and  immunities"  protected  are  not 
merely  those  existing  when  the  amendment  was  adopted, 
A/but  also  those  to  come  in  process  of  time.  The  Constitution 
is  to  last  forever  as  the  organic  law,  the  base  on  which 
changes  or  additions  built  by  time  shall  stand.  Privileges 
and  immunities  of  the  federal  citizen  may  arise  from  new 
legislation,  so  that  legislation  be  within  the  scope  of  na- 
tional authority.  This  shows  the  futility,  the  danger  of 
any  infallible  definition  of  "privileges  or  immunities".. 
So  also  "due  process  of  law"  is  ever  changing  in  the  growth 
and  mutable  conditions  of  society.  Process  unknown  in 
law  today  becomes  due  process  of  law  from  the  action  of 
the  next  legislature  or  the  subsequent  general  practice 
of  the  courts.  We  can  not  take  from  such  an  instrument 
as  a  constitution  capacity  to  meet  the  wants  of  coming 
years  by  an  inflexible  definition,  especially  such  a  provision 
as  this  amendment.  Capacity  for  expansion  must  be  al- 
lowed, else  the  Constitution  would  defeat  its  own  purpose 
as  the  basic  law.12 

"Holden  v.  Hardy,  169  U.  S.  366,  389,    Story  on  Const.  §422. 


FOURTEENTH     AMEN  DM  EM'.  QQ 

\Ve  must  first  take  the  plain  meaning  of  the  words 
"privileges  and  immunities".  Do  those  words  include  the 
thing  in  question?  "Privileges"  is  affirmative,  positive; 
"Immunities",  negative ;  the  one  meaning  rights,  the  other 
exemption  from  wrongs.  Privileges,  in  general  sense, 
including  both  those  under  state  and  federal  citizenship, 
are  those  belonging  to  the  citizen,  not  merely  to  a  person, 
and  would  include,  for  instances,  the  right  to  go  and  come 
through  all  the  territory  under  the  jurisdiction  of  the 
United  States  on  .lawful  business  or  pleasure ;  to  keep 
and  bear  arms;  to  make  contracts;  to  acquire,  hold  and 
dispose  of  property;  to  sue  and  have  admission  to  the 
courts  and  the  benefit  of  habeas  corpus  and  other  legal  rem- 
edies and  the  public  records  and  books;  to  carry  on  law- 
ful business ;  to  use  the  mails,  railroads,  telegraphs,  tele- 
phones, and  other  common  carriers  of  the  citizen's  person, 
goods,  or  intelligence;  to  use  public  highways  and  ease- 
ments; to  be  exempt  from  unreasonable  searches  of  his 
domicile  or  premises,  or  seizure  of  his  property ;  to  enjoy 
light  and  air ;  to  marry  and  have  family ;  to  seek  happi- 
ness and  pleasure ;  to  worship  God,  and  attend  public  wor- 
ship of  God  and  other  public  assemblages  of  the  people; 
to  entertain  what  religious  opinions  conscience  dictates, 
and  worship  accordingly;  to  witness  public  demonstra- 
tions; to  attend  theatres  and  other  public  amusements; 
to  eat  and  drink  what  he  wishes;  to  obtain  education  in 
letters,  music,  art,  profession,  science,  mechanics,  or  the 
like ;  to  attend  the  public  schools,  no  matter  by  what  name 
known,  common,  graded  or  normal  schools,  academies, 
r-'»ll( -ires  or  universities;  to  go  to  foreign  lands ;  to  peace- 
ably assemble  and  confer  upon  religion,  politics  or  busi- 


66  RIGHTS    AXD    PRIVILEGES    UXDER 

ness;  to  write  and  express  opinions  upon  public  matters 
of  business  or  religion;  to  petition  the  government  for 
redress  of  grievances ;  freedom  of  the  press. 

These  privileges  and  immunities  belong  to  the  citizen 
in  free  governments,  but  it  rests  with  the  government 
to  allow,  abridge  or  deny  them,  unless  the  Constitution 
stay  its  hand.  Their  enjoyment  may  be  regulated  or  lost 
or  subtracted  from,  under  the  police  power,  or  power  of 
taxation  or  eminent  domain. 

Privileges  under  Fourteenth  Amendment  Narrower. — But 
the  general  enumeration  is  broader  than  the  Fourteenth 
Amendment.  The  words  "privileges  and  immunities"  in 
it  do  not  embrace  all  rights  above  specified,  for  it  concerns 
only  those  of  them  attendant  upon  federal  citizenship.  As 
to  those  the  hands  of  the  states  are  restrained  by  the  amend- 
ment, but  as  to  those  not  flowing  from  federal  citizenship 
the  nation  assumes  no  protection,  and  they  must  depend 
on  state  constitutions,  laws  and  administration  for  allow- 
ance and  safety.13 

FEDEKAL  PKIVILEGES  AND  IMMUNITIES  PEO- 
TECTED  BY  AMENDMENT. 

They  are  those  pertaining  to  the  citizen  of  the  nation 
as  such,  derived  from  the  federal  Constitution,  statute  or 
treaty,  given  or  granted  by  the  federal  government.  For 
instances  which  may  illustrate,  the  federal  citizen  may  go 
and  come  through  all  the  territory  under  the  jurisdiction 
of  the  United  States;  he  may  go  to  the  national  capital 
on  business  or  pleasure;  he  may  depart  to  go  to  foreign 

"Slaughter  House  Cases,  16  Wall.  37,    37  L.  R.  A.  103. 


THE*    FOURTEENTH     AMENDMENT.  67 

lands;14  he  may  make  contracts  with  the  federal  govern- 
ment, or  with  others  where  allowed  by  its  laws,  and  ac- 
quire from  it  property  or  copyright  or  patent  for  the  in- 
ventions and  works  of  mind  and  hand ;  he  may  sue  in  its 
courts  and  have  legal  remedies  and  the  benefit  of  its  pub- 
lic records  and  books  and  offices;  he  may  reside  in  any 
state;  he  may  navigate  public  waters,  however  far  they 
may  penetrate  states ;  he  may  carry  on  interstate  or  for- 
eign commerce; 15  he  may  use  the  mails;  he  may  by  resi- 
dence in  a  state  become  a  citizen  of  that  state,  whether  it 
so  will  or  not ;  he  may  carry  on  interstate  commerce  free 
from  obstruction  by  state  prohibition  or  taxation ;  he  may 
be  given  federal  office  or  employment,  with  or  without  the 
state's  consent,  though  the  state  may  refuse  its  office  to  one 
holding  federal  office ;  he  may  exercise  that  office  without 
state  obstruction ;  he  may  assemble  with  others  within  a 
state  to  confer  upon  federal  politics  or  matters  and  express 
and  publish  opinions  thereon,  and  petition  the  federal  gov- 
ernment for  redress  of  grievances  ;J  6  he  may  have  the  ben- 
efit in  every  respect  of  federal  bankruptcy;  he  may  de- 
mand national  protection  on  the  high  seas  or  in  foreign 
lands. 

In  any  case  where  under  national  law  the  citizen  of  the 
United  States  may  do  anything,  or  practice  or  enjoy  any 
right,  it  is  a  "privilege"  under  Amendment  Fourteen,  and 
the  right  to  be  exempt  from  interference  with,  and  denial 
of,  it  by  state  law  by  prohibition,  penalty,  tax  or  other- 
wise, is  an  "immunity"  under  the  same.  If  the  state  law 

14  Crandall  v.  Nevada,  0  Wall.  35. 
"Ward  v.  Maryland.  12  Wall.  418. 
i«T.  S.  v.  Cruikshank,  02  V.  S.  542. 


68  RIGHTS    AND    PRIVILEGES    UNDER 

amounts  to  an  abridgment  of  such  privilege,  it  violates  the 
amendment. 

These  words,  "privileges  and  immunities/7  are  found  in 
Article  4,  Sec.  2,  declaring  that  the  "citizens  of  each  state 
shall  be  entitled  to  all  the  privileges  and  immunities  of 
citizens  of  the  several  states,"  and  in  Corfield  v.  Coryell17 
Justice  Washington  gives  them  a  definition  frequently 
quoted  in  textbooks  and  decisions,  and  it  has  been  highly 
extolled  as  approvable.  He  said  that  such  privileges  and 
immunities  could  be  "all  comprehended  under  the  follow- 
ing general  heads :  Protection  by  the  government,  enjoy- 
ment of  life  and  liberty,  with  the  right  to  acquire  and 
possess  property  of  every  kind,  and  to  pursue  and  obtain 
happiness  and  safety,  subject,  nevertheless,  to  such  re- 
straints as  the  government  may  prescribe  for  the  general 
good."18 

In  short,  as  said  in  Logan  v.  United  States,19  "While 
certain  fundamental  rights,  recognized  and  declared,  but 
not  created  or  granted,  in  some  of  the  amendments,  are 
thereby  guaranteed  only  against  violation  or  abridgment 
by  the  United  States  or  the  states,  as  the  case  may  be,  and 
can  not  therefore  be  affirmatively  enforced  by  Congress 
against  unlawful  acts  of  individuals ;  yet  every  right  cre- 
ated by,  arising  under  or  dependent  upon  the  Constitu- 
tion of  the  United  States  may  be  protected  and  enforced 
by  Congress  by  such  means  and  in  such  manner  as  Con- 
gress, in  the  exercise  of  the  correlative  duty  of  protection, 
or  of  the  legislative  powers  conferred  upon  it  by  the  Con- 

17  4  Wash.  C.  C.  380. 

isMcCready's  Case,  27  Grat.  985,  995;    Cooley  on  Con.  Lim.  15. 

i»   144  U.   S.  293. 


THE    FOURTEENTH     AMENDMENT.  69 

stitution,  may  in  its  discretion  deem  most  eligible  and  best 
adapted  to  attain  their  object."  Hence  a  citizen  in  the 
custody  of  the  marshal  was  held  to  have  right  to  be  pro- 
tected from  individual  violence,  and  parties  were  indictr 
able  under  the  federal  statute  against  conspiring  to  injure 
and  oppress  citizens  of  the  United  States  in  the  exercise 
of  their  enjoyment  of  the  right  to  be  secured  against  as- 
sault or  bodily  harm. 

Privileges  and  Immunities,  Further. — In  the  Corfield 
Case,  supra,  it  is  said :  "The  right  of  a  citizen  of  one  state 
to  pass  through  or  reside  in  any  other  state  for  the  pur- 
poses of  trade,  agriculture,  professional  pursuits  or  other- 
wise; to  claim  the  benefit  of  the  writ  of  habeas  corpus; 
to  maintain  actions  in  the  courts  of  the  state;  to  take, 
hold  and  dispose  of  property,  real  or  personal ;  exemption 
from  higher  taxes  or  impositions  than  are  paid  by  other 
citizens  of  the  state,  may  be  mentioned  as  some  of  the  par- 
ticular privileges  and  immunities  of  citizens  which  are 
embraced  by  the  general  description  of  privileges  deemed 
to  be  fundamental,  to  which  may  be  added  the  elective 
franchise  as  regulated  and  established  by  the  constitution 
or  laws  of  the  state  in  which  they  are  exercised.  These 
and  many  others  which  might  be  mentioned  are,  strictly 
speaking,  privileges  and  immunities,  and  the  enjoyment 
of  them  by  citizens  of  each  state  in  every  other  state  was 
manifestly  calculated  'the  better  to  secure  and  perpetuate 
mutual  friendship  and  intercourse  among  the  people  of 
the  different  states  of  the  Union.' ' 

Federal  and  State  Privileges  Different. — We  must,  how- 
ever, remember  that  the  clause  of  the  Constitution  in- 
volved in  the  opinion  above  quoted  related  to  privileges 


70  RIGHTS    AND    PRIVILEGES    UNDER 

and  immunities  of  citizens  of  states  conferred  upon  them 
as  such  citizens  by  state  law,  and  the  Fourteenth  Amend- 
ment had  not  then  been  adopted,  and  rights  pertaining 
to  national  citizenship  were  not  in  the  case,  and  therefore 
the  opinion  refers  to  some  privileges  purely  belonging  to 
state  citizenship,  not  touched  by  the  amendment.  Article 
4  in  the  section  quoted  in  that  case  contains  a  guaranty  by 
the  federal  government  against  denial  by  one  state  to  a 
citizen  of  another  state  of  the  privileges  and  immunities 
given  by  the  former  state  to  its  own  citizens,20  and  does 
not  relate  to  the  federal  citizen's  rights,  nor  to  the  adverse 
action  by  a  state  upon  its  own  citizen  under  its  own  laws. 
But  the  general  principles  there  stated  are  usually  treated 
as  constituting  a  correct  general  rule. 

Equal  Protection. — It  may  occur  to  the  mind  that  some 
of  the  privileges  instanced  above  may  be  within  the  last 
clause  of  the  amendment,  giving  every  "person  within  its 
jurisdiction  the  equal  protection  of  the  laws"  ;  but  the  first 
clause  relates  to  citizen  rights  alone,  and  that  later  clause 
is  leveled  only  against  invidious  discrimination  by  state 
law  between  persons  equally  entitled  to  the  protection  of 
law ;  it  is  only  intended  to  insure  equality  before  the  law, 
not  protection  of  privileges  and  immunities.23 

It  has  been  asserted  that  all  the  privileges  and  immu- 
nities protected  against  adverse  action  by  the  federal  gov- 
ernment in  the  first  eight  amendments  are  all  protected 
by  the  Fourteenth  Amendment,  namely:  The  free  exer- 
cise of  religion;  freedom  of  speech  and  press;  right  to 
assemble  and  petition  for  redress  of  grievances;  to  keep 

20  Blake  v.  McClung,  172  U.  S.  239. 

21  Slaughter  House  Cases,  16  Wall.  77,   172  U.  S.  252. 


THE    FOURTEENTH     AMENDMENT.  71 

and  bear  arms ;  exemption  from  having  soldiers  quartered 
upon  one's  premises;  security  of  person,  houses,  papers 
and  effects  against  unreasonable  searches  and  seizures; 
exemption  from  warrants  of  arrest  and  search,  except  for 
sworn  probable  cause;  exemption  from  criminal  trial 
without  indictment  by  a  grand  jury;  exemption  from 
second  jeopardy  for  the  same  act;  exemption  from  self- 
crimination  as  a  witness ;  immunity  from  deprivation  of 
life,  liberty  or  property  without  due  process  of  law;  ex- 
emption from  having  private  property  taken  for  public 
use  without  compensation ;  right  to  speedy  trial,  and  that 
by  jury,  with  specification  of  offense,  with  compulsory 
process  for  witnesses,  and  aid  of  counsel;  right  to  jury 
trial  in  suits  at  common  law;  and  exemption  from  de*- 
mand  of  excessive  bail. 

It  has  been  contended  that  all  these  privileges,  immu- 
nities, exemptions  or  rights  guaranteed  against  hostile 
action  by  the  federal  government  are  the  very  same  ones 
intended  to  be  all  preserved  against  state  action  by  the 
Fourteenth  Amendment;  that  by  the  earlier  amendments 
they  were  safe  from  federal  invasion,  but  might  be  denied 
by  the  states  without  power  in  the  nation  to  protect  them, 
and  that  it  was  the  object  of  the  Fourteenth  Amendment 
to  cure  this  defect.  It  was  so  stated  in  Justice  Field's 
dissent  in  the  Slaughter  House  Cases,  and  in  Congress 
when  the  amendment  was  proposed.  The  eminent  consti- 
tutional lawyer,  John  Randolph  Tucker,  in  the  notable 
case  of  the  Chicago  Anarchists,  Spies  v.  Illinois,22  ur- 
gently insisted  on  this  view.  But  as  that  case  holds,  those 
amendments  had  design  only  to  restrain  the  federal  gov- 

2=123  U.   S.   131. 


72  RIGHTS    AND    PRIVILEGES    UNDER 

eminent,  and  had  no  reference  to  state  action,  and  while 
plausible,  it  is  not  conclusive  to  say  that  the  subsequent 
Fourteenth  Amendment  intended  to  make  all  and  every 
of  the  things  protected  against  federal  action  by  the  first 
eight  amendments  privileges  and  immunities  protected 
against  state  action.  The  court  in  that  case  does  not  ap- 
prove that  contention,  to  say  the  least.  The  case  of  Hur- 
tado  v.  California,23  holding  good  a  trial  for  capital  crime 
without  indictment  upon  information,  is  against  it.  Those 
amendments  are  not  affirmative  grants  of  the  rights  they 
mention;  they  only  prohibit  Congress  from  interfering 
with  them.  If  we  could  say  that  they  originated  and  con- 
ferred those  rights  as  pertaining  to  the  citizen  of  the  na- 
tion, we  could  more  readily  say  that  the  Fourteenth 
Amendment  covers  them;  but  those  amendments  do  not 
originate  or  confer  those  rights.24  The  true  position 
would  seem  to  me  to  be  that  some  of  the  rights  mentioned 
in  the  first  eight  amendments  are  "privileges  and  immu- 
nities" under  the  Fourteenth  Amendment,  and  some  are 
not.  It  depends  on  the  nature  of  the  right,  not  on  the  fact 
that  it  is  mentioned  in  those  amendments. 

23  HO  U.  S.  516. 

2*  U.  S.  v.  Cruikshank,  92  U.  S.  542,  Sec.  6. 


THE    FOURTEENTH     AMENDMENT.  73 

PAKTICULAR  PRIVILEGES  AND  IMMUNITIES 

PROTECTED. 
f\ 

Under  decisions  let  us  enumerate  some  things  that  are 
or  are  not  privileges  and  immunities  protected  from  state 
action  by  Amendment  Fourteen. 

/^  Eight  of  Suffrage.-^-This  right  is  not  given  by  federal 
law  or  Constitution,  but  comes  alone  from  the  state.  The 
state  may  give  or  withhold  it  from  whom  it  chooses,  but 
can  not  deny  it  because  of  race,  color  or  previous  condition 
of  servitude,  as  that  would  violate  Amendment  Fifteen.25 
Mere  citizenship  does  not  confer  the  vote.  Nowhere  does 
the  federal  Constitution  dictate  who  shall  vote.  Very  clear 
it  is  that  the  nation  can  not  say  who  shall  vote  for  state 
officers.  This  is  so,  because  the  national  power  is  limited 
to  express  or  implied  grant  in  the  Constitution,  and  this 
power  to  prescribe  voters  not  being  given  to  the  nation, 
nor  prohibited  to  the  states,  is  reserved  to  the  states,  im- 
pliedly  and  also  expressly,  by  the  letter  of  Amendment 
Ten,  as  essential  to  the  very  existence  of  the  states.  But 
can  the  nation  prescribe  qualification  for  voters  for  fed- 
eral office?  It  can  not  as  to  senators  or  presidential 
electors,  because  the  Constitution  leaves  their  selection  to 
the  states. 

Congressmen. — Can  the  nation  define  who  shall  vote  for 
representatives  in  Congress?  As  Article  1,  Section  2, 
says  that  voters  for  such  representatives  "shall  possess 
qualification  requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislature,"  the  prescription  of  the 
qualification  of  voters  for  congressmen  is  left  to  the  state. 

as  U.  S.  v.  C'ruikshank.  02  U.  S.  542,  Sec.  9. 


74  RIGHTS    AND    PRIVILEGES    UNDER 

In  Minor  v.  Happersett26  a  woman  claimed  that  because 
she  was. a  citizen  under  the  Fourteenth  Amendment  that 
assured  her  a  vote,  though  the  constitution  of  the  state  lim- 
ited voting  to  males ;  but  the  court  held  that  "right  of  suf- 
frage was  not  necessarily  one  of  the  privileges  or  immu- 
nities of  citizenship  before  the  adoption  of  the  Fourteenth 
Amendment,  and  that  amendment  does  not  add  to  these 
privileges  and  immunities.  It  simply  furnished  ad- 
ditional guaranty  for  the  protection  of  such  as  the  citizen 
already  had.  At  the  time  of  the  adoption  of  that  amend- 
ment suffrage  was  not  co-extensive  with  citizenship  of 
states ;  nor  was  it  at  the  time  of  the  adoption  of  the  Con- 
stitution. Neither  the  Constitution  nor  the  Fourteenth 
Amendment  made  all  citizens  voters."  It  was  held  that 
state  law  could  limit  suffrage  to  males. 

As  the  Constitution,  Article  2,  Section  2,  says  that 
"Each  state  shall  appoint  in  such  manner  as  the  legisla- 
ture thereof  may  direct/7  electors  for  president  and  vice- 
president,  this  function  is  left  to  the  states.  The  state 
may  appoint  them  by  its  legislature  or  by  popular  vote, 
either  in  separate  districts  or  for  the  state  at  large,  or 
part  by  districts  and  part  by  state  at  large.27  It  is  the 
state  law  that  punishes  illegal  voting  for  presidential 
electors.  Justice  Gray  said:  "Although  electors  are  ap- 
pointed and  act  under  and  pursuant  to  the  Constitution 
of  the  United  States,  they  are  no  more  officers  or  agents 
of  the  United  States  than  are  members  of  the  legisla- 
ture when  acting  as  electors  of  federal  senators."28  Not 

2621  Wallace,  162. 

27  McPherson  v.  Blacker,  146  U.  S.  1. 

28  In  re  Green,  134  U.  S.  377. 


TH&    FOURTEENTH     AMENDMENT.  75 

being  federal  but  state  officers,  the  nation  can  not  specify 
qualifications  for  voters  for  presidential  electors. 

The  opinion  says  that  the  United  States  has  no  voters 
of  its  own  creation,  and  that  its  elective  officers  are  elected 
by  state  voters,  whose  law  must  be  supreme  as  to  elective  , 
officers  until  Congress  acts.  Still,  it  does  not  say  that 
Congress  may  not  create  voters  and  hold  election  for  na- 
tional officers.  In  Section  4,  Article  1,  is  the  provision 
that  "the  times,  places  and  manner  of  holding  election  for 
senators  and  representatives  shall  be  prescribed  in  each 
state  by  the  legislature  thereof ;  but  the  Congress  may  at 
any  time  by  law  make  or  alter  such  regulation,  except  as 
to  the  place  of  choosing  senators."  Under  this  section 
the  law  of  the  state  as  to  qualifications  of  voters  for  con- 
gressmen and  regulations  for  their  election  are  the  test 
until  Congress  itself  otherwise  enacts,  provided  Congress 
direct  that  the  voters  for  congressmen  possess  the  same 
qualifications  as  those  prescribed  by  state  law  for  voters 
for  members  of  the  most  numerous  branch  of  the  state  leg- 
islature. In  Ex  parte  Seibold,  100  U.  S.  371,  the  power 
of  Congress  is  asserted  to  make  full  and  complete  reg- 
ulations for  the  election  of  representatives,  and  such  reg- 
ulations supersede  state  regulations,  but  this  does  not  say 
that  it  can  direct  who  shall  vote.  Congress  can  not  give 
a  vote  to  one  not  possessing  right  to  vote  for  a  member 
of  the  state  legislature.  The  opinion  in  Minor  v.  Happer- 
sett29  left  undecided  the  question  whether  Congress  could 
interfere  with  state  law  prescribing  qualifications  for 
voters  for  congressmen,  saying  that  no  such  interference 
had  ever  been  attempted.  I  think  the  inference  from  that 

2921  Wall.  162. 


76  R1CUTX    AND    PRIVILEGES    UNDER 

case  sustains  the  opinion  which  I  have  ventured  above, 
that  Congress  can  not  prescribe  who  shall  vote  for  congress- 
men, because  the  Constitution,  in  §2,  Article  1,  says  that 
electors  for  congressmen  shall  have  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  state  leg- 
islatures, and  nobody  has  ever  questioned  the  absolute  right 
of  the  state  to  fix  their  qualifications.  So  even  as  to  elec- 
tion of  federal  officers  we  find  no  federal  prescription  as 
to  who  shall  vote.  There  is  clearly  no  power  in  the  nation 
to  say  who  shall  vote  for  state  officials  as  stated  above.  We 
can  not  say,  strictly  speaking,  that  Amendment  Fifteen 
prescribes  qualification  for  voters  for  state  elections  by 
giving  and  granting  to  colored  people  the  right  of  suffrage, 
for  it  is  held  in  U.  S.  v.  Keese,30  that  "the  Fifteenth 
Amendment  does  not  confer  the  right  of  suffrage,  but  it 
invests  citizens  of  the  United  States  with  the  right  of  ex- 
emption from  discrimination  on  account  of  color  or  pre- 
vious condition  of  servitude,  and  empowers  Congress  to 
enforce  that  right  by  appropriate  legislation."  That 
amendment  is  the  only  instance  in  which  Congress  is  given 
power  to  interfere  with  the  state's  power  to  qualify  its 
voters.  I  note  that  Ex  parte  Yarbrough31  qualifies  the 
Eeese  Case,  and  explains  it,  but  only  in  so  far  as  it  might 
be  construed  to  hold  that  in  no  case  does  Amendment 
Fifteen  confer  suffrage  on  the  colored  man.  The  qual- 
ification does  not  seem  material ;  for  the  Yarbrough 
Case  grants  that  Amendment  Fifteen  does  not,  as  an 
affirmative  grant  or  definition  of  suffrage,  confer  the 
vote  on  the  colored  man  unqualifiedly.  It  unquestion 

30  92  U.  S.  214. 

si  110  U.  S.  651.     See  Wiley  v.  Sinkler,  179  U.  S.  58. 


THE     FOURTEENTH     AMENDMENT.  77 

ably  does  give  A,  a  colored  man,  qualified  to  vote  in 
all  other  respects,  save  only  color,  as  B,  a  white  man, 
a  right  to  vote.  It  is  a  privilege  as  well  as  an  immu- 
nity; a  privilege,  because  it  practically  says  that  A 
shall  vote,  since  a  prohibition  of  a  denial  of  his  vote  is 
tantamount  to  a  positive  statement  that  he  shall  vote.  It 
is  an  immunity  because  the  amendment  saves  him  from  the 
loss  of  his  vote  by  reason  of  color.  If,  therefore,  state 
constitution  or  law  makes  color  a  qualification  of  voting, 
it  violates  a  privilege  or  immunity  given  the  colored  man, 
violates  Amendment  Fifteen,  and  the  state  officers  of  elec- 
tion would  be  bound  to  ignore  the  state  law,  as  it  of  its 
own  force,  without  legislation,  strikes  the  word  "white" 
from  the  state  constitution,  32  and  Congress  could  enact  a 
law  granting  the  voter  his  vote  in  such  case  and  punishing 
its  denial.  It  would  be  a  denial  of  a  right  given  by 
Amendment  Fifteen ;  but  as  properly  held  in  United  States 
v.  Reese,33  it  would  not  come  under  Amendment  Four- 
teen. It  is  not  a  privilege  under  Amendment  Fourteen. 
It  does  not  need  that  amendment  for  its  maintenance. 
If  the  state  definition  of  suffrage  happen  to  deny  it  to 
a  colored  man  for  any  substantial  ground,  not  merely  col- 
orable, other  than  race,  color,  or  previous  condition  of 
servitude,  it  violates  no  privilege  or  immunity  given  by 
the  federal  Constitution.  Therefore  the  Reese  Case  seems 
sound.  Amendment  Fifteen  does  not  unconditionally 
grant  suffrage.  That  case  does  not  differ  from  the  Yar- 
brough  Case.  But  if  a  man  has  a  right  to  vote  for  a  mem- 
ber of  the  most  numerous  branch  of  a  state  legislature  by 

32  Ex  parte  Yarbrough,  110  U.  S.  665. 

33  92  U.  S.  214. 


78  RIGHTS    AND    PRIVILEGES    UNDER 

state  law,  he  then  has  a  right  to  vote  for  a  congressman, 
not  merely  by  state  law,  but  his  vote  is  given,  conferred 
by  federal  law  under  the  Constitution  as  held  in  the 
Yarbrough  Case. 

Federal  Protection  of  Voters. — While  the  nation  has 
no  voters  under  qualifications  prescribed  by  it,  yet  it  has 
representatives  chosen  at  congressional  elections  fixed  for 
a  particular  day  by  act  of  Congress.  Presidential  elect- 
ors are  chosen  at  the  same  election.  These  elections  being 
essential  to  enable  the  United  States  to  perform  its  func- 
tions, it  has  clear  right  to  legislate  for  their  regulation  as 
a  necessary  incident  to  the  right  to  have  such  officers 
chosen,  and  also  under  Section  4,  Article  1,  giving  Con- 
gress power  to  make  such  regulations  complete,  or  alter 
state  legislation  touching  them.  And  under  that  au- 
thority Congress  has  passed  stringent  acts  to  punish  offi- 
cers of  election  for  congressmen,  whether  the  officers  be 
of  state  or  federal  appointment,  for  nonperformance,  or 
misperformance  of  duty,  to  punish  all  interfering  with 
such  officers  by  bribery,  fraud  or  conspiracy,  intimidation 
or  otherwise,  and  punishing  even  persons  acting  under 
state  law  interfering  with  marshals  or  their  deputies  at 
such  elections.  Such  legislation  was  held  valid.34  Strin- 
gent acts  punishing  persons  for  hindering  voters  in  the 
exercise  of  their  right  to  vote  for  congressmen  or  presi- 
dential electors  by  force,  intimidation  or  threat  have  also 
been  sustained  under  like  authority.35 
,  Voters  in  Territories. — Here  the  right  of  Congress  to 

s*  Ex  parte  Seibold,   100  U.  S.  371;     Ex  parte  Clark,  Id.,   399; 
In  re  Coy,  127  Id.,  731. 

35  Rev.  Stat.  §§5508,  5520;    Ex  parte  Yarbrough,  110  U.  S.  651. 


TUB    FOURTEENTH     AMENDMENT.  79 

give  or  withhold  suffrage  and  regulate  elections  and  suf- 
frage is  clear.  Its  power  is  absolute.36 
/  Sale  of  Liquors. — Laws  of  a  state  regulating  or  wholly 
prohibiting  the  sale  of  intoxicating  liquors  do  not  depriv, 
of  a  privilege  or  immunity  of  citizenship  contrary  to 
Amendment  Fourteen.  The  right  to  sell  or  manufacture 
spirituous  liquors  has  been  held  not  to  be  a  privilege  or 
immunity  under  that  amendment37 

As  such  liquors  are  a  merchantable  commodity,  one 
would  think  that  the  right  to  make  or  sell  them  in  pursuit 
of  a  livelihood  would  be  a  "privilege"  under  the  law.  So 
it  is  in  nature ;  but  it  is  unquestionably  within  the  police 
power  of  a  state  to  prohibit  their  manufacture  or  sale 
within  it.  The  power  exists,  not  because  carrying  on 
the  business  is  not  a  privilege,  but  because  it  falls  under 
the  police  power  to  prohibit  it.38  It  has  been  claimed 
that  such  prohibitory  laws  violate  that,  clause  of  the 
amendment  protecting  property,  but  that  has  not  pre- 
vented state  prohibition.  Viewed  either  in  the  light  of 
legislation  prejudicial  to  privilege,  property  or  liberty, 
such  prohibition  is  to  be  defended  solely  under  the  police 
power,  and  the  Fourteenth  Amendment  was  not  designed 
to  detract  from  the  state's  police  power.39  In  fact,  how- 
ever, this  right  would  be  better  classified  as  one  of  per- 
sonal liberty,  falling  under  the  word  "liberty"  in  the 
amendment,  rather  than  under  the  word  "privileges.'' 

a«  Opinion  in  Murphy  v.  Ramsey,  114  U.  S.  44,  97  Am.  D.  267: 
Bank  v.  County,  101  U.  S.  129. 

"Oio/7a  v.  Tiernan.  148  V.  S.  0.57:  Miller  v.  Ammon,  145  Id., 
421  :  Vance  v.  \V.  A.  Yandercook,  170  Id.,  438;  Reyman  Co.  v.  Blister, 
17H  U.  S.  445.  21  Sup.  Ct.  201. 

asKidd  v.  Pierson.  128  U.  S.  1  :    Mugler  v.  Kansas,  123  Id.,  623. 

s»  Powell  v.  Pennsylvania,  127  U.  S.  678. 


80  RIGHTS    AND    PRIVILEGES    UNDER 

However,  it  is  not  a  privilege  of  federal  citizenship,  if 
regarded  a  privilege,  and  therefore  under  that  head  would 
not  fall  under  the  amendment^!  repeat  that  only  privi- 
leges and  immunities  of  federal  citizenship,  not  those  of 
state  citizenship,  are  protected  hy  this  clause  of  the  amend- 
ment. \ 

^  Prohibition  of  Manufacture. — The  state  may  prohibit  the 
manufacture  of  liquors  within  its  borders  for  export.40 
Its  police  power  is  complete  until  transitus  has  begun 
actually,  and  until  it  is  finished.41 

Liquors  sent  from  State  to  State. — It  may  not  be  amiss 
here  to  mention  that  state  law  can  not  prohibit  the  send- 
ing of  spirituous  liquors  by  one  man  in  one  state  to  an- 
other man  in  another  state.  The  interstate  commerce 
clause  of  the  Constitution  would  condemn  such  legislation. 
At  one  time  this  clause  allowed  this  transportation,  not 
only  up  to  the  delivery  to  the  consignee  of  the  liquor, 
but  allowed  him  to  sell  it  in  the  original  packages  in 
which  it  was  put  up  in  the  state  from  which  it  was  sent, 
notwithstanding  state  law  prohibiting  such  sale;  but  an 
act  of  Congress  in  1890  so  modified  this  doctrine  as  to  pro- 
tect the  liquor  only  until  delivery  to  the  consignee,  and 
then  it  falls  under  the  restraint  of  state  laws  as  to  pro- 
hibition or  regulation.42  Still,  that  case  and  Vance  v. 
W.  A.  Vandercook,43  do  allow  importation  of  spirituous 
liquors  into  one  state  from  another,  and  delivery  to  its  con- 
signee, notwithstanding  state  prohibition.  The  late  act 
brings  the  liquor,  after  delivery  to  the  consignee,  under 

40  Kidd  v.  Pierson,  128  U.  S.  1. 

41  Giozza  v.  Tiernan,  148  U.  S.  657. 

42  Rhodes  v.  Iowa,  170  U.  S.  412. 
*3  170  U.  S.  438. 


J 


TilU    FOURTEENTH     AMEKD11EM'.  £1 

the  state  law,  so  that  the  Consignee  can  no  longer  sell  it, 
though  it  remains  in  original  packages  of  shipment,  unless 
authorized  by  state  law  to  do  so. 

Keeping  Liquor  in  Possession  for  another,  as  in  storage- 
houses,  has  been  prohibited  in  some  states  by  statute; 
but  such  statutes  have  been  held  void  as  repugnant  to 
the  amendment,  and  not  justified  by  the  police  power.44 

Military  Parades. — These  are  very  common.  Though  a 
privilege,  they  are  within  the  control  of  the  state,  as  such 
privilege  is  not  one  attending  federal  citizenship,  and  a 
state  may  regulate  the  privileges  and  immunities  of  its 
own  citizens,  if  it  does  not  abridge  those  of  citizens  of 
the  United  States.45  The  right  to  drill  and  parade  with 
arms,  without  authority  of  federal  or  state  law,  it  was 
held  in  the  case  last  cited,  could  be  prohibited  by  the 
governor. 

/  Practice  of  Law  might  be  regarded  a  privilege  to  earn 
a  living ;  but  it  has  been  held  not  such  under  the  amend- 
ment, but  subject  to  state  control.46 

Practice  of  Medicine — A  state  statute  regulating  it, 
limiting  the  privilege  to  those  possessing  certain  quali- 
fications, was  held  not  repugnant  to  the  amendment.47 
The  right  to  practice  medicine  does  not  seem  to  have  been 
claimed  to  deny  a  privilege,  in  that  case,  but  it  was  claimed 
that  it  invaded  a  property  right.  If  a  privilege,  it  is  one 

44  State  v.  Gillman,  33  W.  Va.  146;    Ex  parte  Brown,  70  Am.  St. 
R.  743. 

45  Presser  v.  Illinois,  116  U.  S.  252. 

46Bradwell  v.  State,  16  Wall.  130;  In  re  Lockwood,  154  U.  S. 
116. 

47  Dent  v.  West  Va.  129  U.  S.  114:  State  v.  Webster,  150  Ind. 
007  (full);  Seholle  v.  State,  46  Atl.  326;  Noel  v.  People,  187  111. 
587. 


32  RIGHTS    AND    PRIVILEGES    UNDER 

of  state  citizenship;  and  if  it  is  a  property  right  or  a 
liberty  right,  it  is  still  subject  to  state  police  regulation. 
Dentistry,  Practice  of,  falls  under  the  same  principle.43 
j  Marriage  between  White  and  Colored  Persons  may  be 
prohibited  by  a  state,  notwithstanding  the  amendment.49 
Regulation  of  marriage  is  a  police  power  essential  to  the 
state,  and  is  not  impaired  by  the  Fourteenth  Amendment. 
.  Jury  Trial  in  State  Court  is  not  a  privilege  or  immunity 
of  national  citizenship  which  the  amendment  prohibits 
the  state  from  abridging.50  The  state  was  dealing  with 
its  own  citizens  in  the  administration  of  its  laws  by  its 
own  procedure.  This  jury  right  did  not  exist  because  he 
was  a  citizen  of  the  United  States,  and  the  amendment 
only  defends  privileges  as  such  coming  from  national 
citizenship. 

/  Monopoly  Damaging  Business  and  Property  .-/-In  the 
great  Slaughter-House  Cases51  the  claim  was  made  that 
an  act  Act  of  Louisiana  incorporating  a  company  with 
exclusive  right  for  twenty-five  years  to  maintain  slaughter- 
houses, landings  and  stockyards  for  cattle  and  sheep  in- 
tended for  sale  or  slaughter,  and  to  charge  fees  therefor, 
the  monopoly  covering  an  area  including  the  city  of  New 
Orleans  and  a  population  of  300,000,  and  prohibiting  all 
persons  from  doing  like  business  within  the  area,  and  re- 
quiring all  stock  for  sale  or  slaughter  within  it  to  be 
landed  there,  but  allowing  all  owners  of  stock  to  land  it 

48  14  L.  R.  A.  581,-    Gosnell  v.  State,  52  Ark.  228,    12  S.  W.  392; 
State  v.  Creditor,  21  Am.  St.  306;  State  v.  Knowles,  49  L.  R.  A.  695, 
90  Md.  646. 

49  Ex  parte  Hobbs,  1  Woods,  537;    State  v.  Gibson,  36  Ind.  389. 
so  L.  &  N.  Co.  v.  Schmidt,  177  U.  S.  230:    Walker  v.  Sauvinet, 

92  U.  S.  90. 

si  16  Wall.  36.     See  Xewburyport  Co.  v.  City,  103  Fed.  584. 


•/•///•;    rm-RTEEM'H    AMEXDMEM.  33 

there  and  all  butchers  to  slaughter  there — it  was  claimed 
that  it  was  not  only  a  monopoly,  but  that  the  act  deprived 
the  butchers  of  privilege  and  immunity  on  the  theory 
that  they  had  the  right  to  carry  on  their  legitimate  busi- 
without  fee,  and  that  the  act  trenched  on  their  right 
to  make  a  living,  and  on  the  right  of  the  people  to  be  sup- 
plied by  them  with  the  necessaries  of  life,  and  also  took 
away  property  without  due  process  of  law.  The  court 
held  that  the  rights  claimed  were  not  "privileges  and  im- 
munities of  citizens  of  the  United  States  within  the  mean- 
ing of  the  clause  of  the  Fourteenth  Amendment  under 
consideration.77  .At  first  thought,  we  might  doubt  this  de- 
cision; but  it  seems  on  second  thought  clear  that  the  act 
\vas  defensible  under  the  state's  police  power,  and  at  any 
rate,  the  right  claimed  by  these  complaining  persons  did 
not  inhere  in  them  as  citizens  of  the  nation,  but  as  citi- 
zens of  the  state,  subject  to  state  control,  and  whether 
their  privileges  and  immunities  were  violated  was  a  state 
judicial  question,  not  a  federal  question.  If  the  act  had 
interfered  with  interstate  commerce,  it  might  be  different, 
as  the  right  to  carry  on  such  commerce  should  be  con- 
sidered a  privilege  pertaining  to  the  person  as  a  citizen 
of  the  Union.  Four  out  of  the  nine  judges  sitting  in  the 
case  dissented. 

^Colored  Jurors. — I  take  it  that  the  case  of  Strauder  v. 
West  Virginia,52  holding  that  a  state  statute  excluding 
colored  persons  from  juries,  is  repugnant  to  the  Four- 
teenth Amendment,  falls  under  that  clause  against  deny- 

52  100  U.  S.  303;    In  re  Wood,  140  U.  S.  278;    Carter  v.  Texas, 

177  U.  S.  442. 


84  RIGHTS    AND    PRIVILEGES    UNDER 

ing  equal  protection  of  the  laws,  rather  than  the  clause 
of,  privileges  and  immunities. 

J  Colored  Persons'  Rights  in  Hotels,  etc — An  act  of  Con- 
gress declared  that  all  persons  should  be  entitled  to  equal 
enjoyment  of  inns,  public  conveyances,  theatres  and  other 
places  of  amusement.  If  that  act  were  valid,  such  en- 
joyment of  inns,  conveyances  and  theatres  would  be  a 
"privilege,"  and  a  privilege  of  a  national  citizen,  because 
given  by  national  law ;  but  The  Civil  Rights  Cases53  held 
the  act  unconstitutional,  because  not  warranted  by  the 
Fourteenth  Amendment,  it  being  legislation  of  original 
character  belonging  to  the  states,  not  merely  corrective  of 
state  legislation.  They  waived  the  point  whether  such 
right  was  an  essential  right  beyond  state  abridgment,  the 
act  giving  the  right  being  void.  As  the  act  was  void,  the 
right  given  by  it  could  not  be  a  privilege  of  federal  citi- 
zenship, though  it  might  be  one  of  state  citizenship,  and 
could  not  be  a  subject  of  federal  cognizance,  but  only  of 
state  cognizance.  The  court  laid  down  the  principle  that 
legislation  by  Congress  under  Section  5,  of  Amendment 
Fourteen,  must  not  be  legislation  for  the  government  of 
the  people  of  the  states,  a  code,  or  part  of  a  code  of  law ; 
that  is,  legislation  of  affirmative  or  general  nature,  even 
on  the  subjects  respecting  which  the  state  is  prohibited 
by  the  amendment,  but  only  legislation  in  its  nature  cor- 
rective of  state  law,  or  action  of  officers  under  state 
authority — only  counteracting  state  law  or  action  under 
its  authority.  This  is  an  important  case  and  an  important 
principle.  The  case  still  leaves  with  the  states,  notwith- 
standing the  augmentation  of  congressional  power  made 

53 109  u.  S.  3. 


THE    FOURTi;i;.\TlI      A. \IU\DMK\T.  85 

by  the  amendment,  the  right  to  legislate  for  the  govern- 
ment of  their  people,  and  denies  to  Congress  the  capacity 
to  do  so,  conceding  it  capacity  only  to  legislate  so  far  as 
is  found  necessary,  from  actual  state  action,  to  carry  out 
the  prohibition  upon  the  states  made  by  the  amendment. 
The  function  assigned  to  Congress  by  those  cases  is  rather 
antidotal  or  corrective — to  stop,  to  remedy  further  mis- 
chief from  state  law  or  action.  The  Civil  Rights  Cases 
discriminate  between  the  act  admitting  colored  persons  to 
hotels,  conveyances  and  theatres,  and  the  act  called  "The 
Civil  Rights  Bill,"  declaring  the  same  right  of  all  persons 
to  make  contracts,  sue,  give  evidence,  to  have  the  benefit 
of  all  laws  for  the  security  of  persons  and  property,  and 
to  acquire  and  convey  property,  as  is  enjoyed  by  white 
citizens,  treating  the  latter  act  as  valid,  because  made  in 
counteraction  of  actually  existing  state  law  making  dis- 
crimination between  white  and  colored  people  as  to  ability 
to  contract,  hold  property,  give  evidence,  etc.  The  latter 
act  is  to  secure  civil  rights.  It  might  be  said  the  other 
act  related  to  social  rights.  It  may  be  questionable  to  say, 
though  the  amendment  is  only  prohibitory  in  character, 
that  Congress  could  not  pass  laws  to  anticipate  and  pre- 
vent in  advance  apprehended  state  action  in  violation  of 
such  prohibition;  but  the  Civil  Rights  Cases  do  so;  at 
least,  they  deny  power  in  Congress  to  assume  the  function 
of  legislating  generally,  like  a  state  legislature,  for  the 
government  of  the  people  of  a  state,  even  in  respect  to 
the  matters  dealt  with  by  the  amendment.  The  spirit  of 
the  decision — the  general  way  blazed  out  by  it — is  right. 
It  must  not  be  assumed  beforehand  that  a  state  will  vio- 
late the  federal  Constitution,  or  deny  essential  rights  to 


86  RIGHTS    AND    PRIVILEGES    UNDER 

its  people.  The  nation  should  not  regard  the  states  as 
alien  or  hostile,  any  more  than  the  people  of  the  states 
should  harbor  an  insane  jealousy  of  the  federal  govern- 
ment, and  regard  it  as  an  alien  enemy  bent  on  destruction 
of  the  rights  of  the  states.  Nation  and  states  should  be 
in  this  matter  one  and  inseparable.  The  median  line  is 
here  the  line  of  safety,  as  it  generally  is. 

Another  sound  reason  given  by  the  court  in  the  Civil 
Rights  Cases  why  the  privileges  there  involved  did  not  fall 
under  the  Fourteenth  Amendment,  is,  that  the  amend- 
ment only  deals  with  state  action,  not  individual  action, 
and  the  denial  of  admission  by  a  hotelkeeper  or  owner  of 
a  conveyance  or  theatre  is  an  individual  act.  And  would 
not  the  police  power  of  the  state  in  such  case  forbid  the 
federal  statute  ? 

Those  cases  do  not  pass  on  the  right  of  Congress  to 
compel  admission  to  conveyances  passing  between  states. 
Possibly  it  would  be  a  privilege  enforceable  by  Congress, 
because  the  commerce  clause  gives  right  to  carry  on  inter- 
state commerce,  and  passing  from  state  to  state  is  an 
essential  in  its  transaction. 

Attention  is  called  to  the  fact  that  the  power  of  Con- 
gress under  the  Fourteenth  Amendment  to  enforce  it  by 
"appropriate  legislation"  is  different  from  its  power  to 
legislate  generally  as  to  foreign  and  interstate  commerce, 
mails,  coinage  and  war,  because  the  Constitution  as  to 
those  subjects  invests  Congress  with  plenary  and  complete 
power  of  legislation,  exclusive  of  the  states.  As  to  them, 
Congress  is  what  a  state  legislature  is  as  to  other  matters 
within  its  domain.54 

«4  Passenger  Cases,  7  How.  283. 


TtiL'     FOURTEENTH     AMENDMENT.  gf 

/Separate  Cars  for  White  and  Colored. — The  Supreme 
Court  holds  that  an  act  of  a  state  requiring  white  and 
colored  persons  to  ride  in  separate  railroad  cars,  but  pro- 
viding equal  accommodation  for  both,  does  not  violate 
a  privilege  or  immunity  under  the  Fourteenth  Amend- 
ment,55 

The  opinion  of  Justice  Brown  says:  "The  object  of 
the  amendment  was  undoubtedly  to  enforce  the  absolute 
equality  of  the  two  races  before  the  law;  and  in  the, 
nature  of  things  it  could  not  have  been  intended  to  abolish 
distinction  based  on  color,  or  to  enforce  social,  as  dis- 
tinguished from  political  equality,  or  a  commingling  of 
the  two  races  upon  terms  unsatisfactory  to  either.  Laws 
permitting,  or  even  requiring,  their  separation  in  places 
where  they  are  liable  to  be  brought  into  contact,  do  not 
necessarily  imply  the  inferiority  of  either  race  to  the 
other,  and  have  been  generally,  if  not  universally,  recog- 
nized as  within  the  competency  of  state  legislatures  in 
the  exercise  of  their  police  power.  The  most  common 
instance  of  this  is  connected  with  the  establishment  of 
separate  schools  for  white  and  colored  children,  which  has 
been  held  to  be  a  valid  exercise  of  the  legislative  power, 
even  by  courts  of  states  where  the  political  rights  of  the 
colored  race  have  been  longest  and  most  earnestly  en- 
forced." The  court  said  this  case  did  not  conflict  with 
R.  R.  Company  v.  Brown,56  holding  that  where  a  statute 
provided  that  "no  person  should  be  excluded  from  the 
cars  on  account  of  color,"  no  one  could  be  excluded  from 

ssplessy  v.  Ferguson,  163  U.  S.  537.  18  L.  R.  A.  639  and  notes; 
C.  &  O.  Co.  v.  Kentucky,  179  U.  S.  388. 
e«  17  Wall.  445. 


88  RIGHTS    AXD    PRIVILEGES    UNDER 

any  car,  though  separate  ones  were  furnished  for  the  two 
races. 

Trains  from  State  to  State. — In  the  case  above  mentioned 
the  court  did  not  apply  the  rule  to  cars  running  from  state 
to  state  engaged  in  interstate  commerce.  The  Supreme 
Court  has  held  state  laws  for  separate  cars  valid,  because 
construed  by  the  state  court  as  applicable  only  to  internal 
passenger  carriage,  that  is,  to  cars  running  only  in  the 
state,  and  did  not  directly,  but  did  virtually,  decide  that 
as  to  cars  passing  from  state  to  state,  the  state  law  would 
be  invalid.57  It  may  be  regarded  doubtful  whether  we 
can  regard  those  decisions  as  pointed  that  such  state  laws 
would  be  invalid;  but  if  so,  we  must  remember  that  this 
federal  power  is  not  to  be  attributed  to  the  Fourteenth 
Amendment,  as  it  comes  alone  from  the  old  commerce 
clause  giving  Congress  power  to  regulate  commerce  be- 
tween the  states.  !N"ow,  if  the  federal  act  giving  colored 
people  entrance  into  inns  and  public  conveyances  were 
valid,  probably  the  right  to  go  into  any  car  might  be 
deemed  a  privilage  of  federal  citizenship  under  the  amend- 
ment; but  the  Civil  Rights  Cases  held  it  void.  Losing 
that  foundation,  we  must  look  to  some  other  clause  of 
the  amendment  to  overthrow  state  law  of  separate  cars. 
We  may  say  that  it  is  a  part  of  personal  liberty,  the  right 
of  locomotion ;  but  though  it  be,  still  if  the  law  gives  sub- 
stantially equal  accommodation,  though  the  passenger  goes 
to  another  state,  that  right  is  not  denied  or  abridged.  The 
state  law  is  merely  one  of  regulation.  As  to  the  commerce 
clause,  how  is  a  man,  though  going  from  state  to  state  to 
sell  his  cattle,  retarded  or  obstructed  in  his  right  to  carry 

57  Louisville,  etc.,  v.  Mississippi,  133  U.  S.  587;  C.  &  O.  Co.  v.  Ken- 
tucky, 179  U.  S.  388. 


TUB     FOURTEENTH     AMENDMENT.  §9 

on  interstate  commerce,  if  given  like  transportation  with 
another  man?  Such  legislation,  if  the  state  regard  it 
best  for  the  harmony  and  comfort  of  the  two  races,  and  con- 
ducive to  public  order,  would  seem  to  find  full  warrant 
under  the  police  power.  And  is  it  a  privilege  of  fed- 
eral citizenship  ?  But  it  seems  it  would  be  invalid.58 
/  Separate  Schools  for  White  and  Colored. — Laws  so  provid- 
ing have  been  sustained  as  valid.  Mr.  Justice  BrowTi 
so  regards  them  in  Plessy  v.  Ferguson.59  Chief-Justice 
Shaw,  in  the  Supreme  Court  of  Massachusetts,  said:  "It 
is  urged  that  this  maintenance  of  separate  schools  tends 
to  deepen  and  perpetuate  the  odious  distinction  of  cast, 
founded  in  deep-rooted  prejudice  in  public  opinion.  This 
prejudice,  if  it  exists,  is  not  created  by  law,  probably  can 
not  be  changed  by  law.  Whether  this  distinction  and 
prejudice  existing  in  the  opinion  and  feelings  of  the  com- 
munity would  not  be  as  effectually  fostered  by  compelling 
colored  and  white  children  to  associate  together  in  the 
same  school,  may  well  be  doubted;  at  all  events,  it  is  a 
fair  and  proper  question  for  the  committee  to  decide  upon, 
having  in  view  the  best  interests  of  both  classes  placed 
under  their  superintendence,  and  we  can  not  say  their 
decision  is  not  founded  on  just  ground  of  reason  and  ex- 
perience, and  is  the  result  of  discriminating  and  honest 
judgment."60 

That  case  was  before  the  Fourteenth  Amendment,  but 
its  principles  are  sound  under  it.  Separate  schools  are 
justified  by  the  police  power,  as  Justice  Brown  said  in 

58  Hall  v.  De  Cuir,  95  U.  S.  485;    Anderson  v.  Co.,  62  Fed.  46. 

™  163  U.  S.  544. 

«o  Roberts  v.  City,  5  Cush.  198. 


90  RIGHTS    AND    PRIVILEGES    UNDER 

Plessy  v.  Ferguson,  supra,  which  power  is  intact  in  the 
states,  notwithstanding  the  amendment.  If  this  were  not 
so,  how  can  we  say  that  a  right  to  obtain  an  education 
under  state  law  and  expense  is  a  right  belonging  to  federal 
citizenship,  when  it  emanates  from  state  law  \  Xot 
being  a  federal  right,  it  does  not  come  under  the  amend- 
ment. It  is  a  great  privilege,  it  is  true,  and  belongs,  as 
of  right,  to  the  colored  child  under  the  state's  free  school 
system,  and  must  be  enforced;  but  it  is  because  he  is 
a  state  citizen.  It  is  not  a  matter  of  federal  cognizance. 
In  Martin  v.  Board  of  Education,61  Judge  Dent  said: 
aThe  meritorious  question  presented  is  as  to  whether 
Section  8  of  Article  12  of  the  Constitution  of  this  state 
is  repugnant  to  Section  1  of  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States,  in  this:  that 
it  declares  that  white  and  colored  persons  shall  not  be 
taught  in  the  same  school.  The  only  privilage  that  appears 
to  be  denied  to  colored  children  in  this  section  is  that  of 
association  with  white  children,  and  vice  versa.  If  it  had 
required  that  they  should  be  taught  in  the  same  school, 
then  it  would  have  been  a  compulsory  infringement  of 
the  rights  of  both,  but,  as  it  is  now,  it  treats  them  both 
alike,  and  places  them  precisely  on  the  same  footing.  It 
prevents  the  legislature  and  boards  of  education  from  in- 
fringing on  the  rights  of  both  in  compelling  them  to  attend 
a  common  school,  which  might  be  highly  detrimental  to 
both,  and  injurious  to  the  school.  Social  equality  can  not 
be  enforced  by  law.  This  question  has  already  been 
settled  by  numerous  decisions  of  state  and  federal  courts. 
Hall  v.  De  Cuir,  95  IT.  S.  485 ;  Slaughter-House  Cases, 

«i  42  W.  Va.  514. 


THE    FOURTH  K.\T1I     AMENDMENT.  Ql 

Iti  Wall.  36;  State  v.  McCann,  21  Ohio  St.  210;  People 
v.  Gallagher,  93  JST.  Y.  438 ;  Cory  v.  Carter,  48  Ind.  337 ; 
Lehew  v.  Brummell,  103  Mo.  546,  15  S.  W.  765 ;  Ward 
v.  Flood,  48  Cal.  36." 

The  Xew  York  court  said  in  People  v.  Gallagher,  supra : 
"In  the  nature  of  things  there  must  be  many  social  dis- 
tinctions and  privileges  remaining  unregulated  by  law, 
and  left  to  individual  control  as  citizens,  beyond  reach  of 
legislative  functions  of  government  to  organize  and  con- 
trol. The  attempt  to  enforce  social  intimacy  and  inter- 
course between  races  by  legal  enactment  would  probably 
tend  only  to  embitter  the  prejudices,  if  such  things  are, 
which  exist  between  them,  and  produce  evil  instead  of 
good  results.  .  .  .  When  the  state  has  secured  to  each 
citizen  equal  right  before  the  law,  and  equal  opportunity 
for  improvement  and  progress,  it  has  accomplished  the 
end  for  which  it  was  organized."  The  court  held  that 
the  act  did  not  violate  the  Fourteenth  Amendment.  It 
wu<  so  held  in  State  v.  McCann.62  The  court  said  that 
the  separation  of  white  and  colored  was  no  more  un- 
' reasonable  than  separation  on  account  of  sex  or  grade.63 
The  Supreme  Court  of  the  United  States  has  held  that  a 
decision  by  a  state  court  refusing  an  injunction  against 
the  maintenance  of  a  high  school  for  white  children,  while 
failing  to  maintain  one  for  colored  children  also,  for 
the  reason  that  the  funds  were  not  sufficient  to  maintain 
it  in  addition  to  needed  primary  schools  for  colored  chil-» 
dren,  is  not  a  denial  to  colored  persons  of  the  equal  pro- 

«21  Ohio  St.  108. 

•a  Dawson  v.  Lee,  83  Ky.  49. 


go  RIGHTS    A\D    i'RL  \LLEUE 8     UXDEli 

tection  of  the  law,  or  equal  privileges  of  citizens  of  the 
United  States.64 

An  act  applying  the  taxes  collected  from  each  race  to 
the  schools  of  each  race  has  been  held  contrary  to  the 
Fourteenth  Amendment.65 

In  Clark  v.  Maryland  Institute,66  it  was  held  that  an 
educational  institution,  though  given  municipal  aid,  is 
not  a  part  of  the  public  school  system,  and  may  exclude 
colored  pupils-  without  violating  the  Fourteenth  Amend- 
ment, as  denying  the  equal  protection  of  law  or  the  im- 
munities of  citizens,  as  the  amendment  applies  only  to 
state  action,  not  to  actions  of  individuals  or  private  cor- 
porations. 

^  Carrying  Deadly  Weapons.  Statute  Prohibiting,  not  a 
Violation  of  the  Fourteenth  Amendment,  or  the  Second 
Amendment.  The  second  does  not  grant  the  right  to 
carry  a  weapon.  It  operates  only  on  the  federal  govern- 
ment. It  does  not  impair  the  state  power  of  regulation 
and  police  in  this  respect.67 

Diseased  Cattle  Running  at  Large. — A  state  law  impos- 
ing a  penalty  for  allowing  cattle  having  Texas  fever  to 
run  at  large,  applying  to  all  persons  alike,  was  held  not 
to  abridge  privileges  and  immunities  under  the  Four- 
teenth Amendment,  nor  violate  the  commerce  clause. 6S 
The  police  power  of  the  state  would  warrant  the  statute. 
This  decision  is  to  be  distinguished  from  Railroad  v. 

e*  Gumming  v.  County  Board,  175  U.  S.  528. 

es  Claybrook  v.  City,  23  Fed.  634 ;  Marcum  v.  Manning,  96  N.  C. 
132. 

es  87  Md.  643. 

67  Miller  v.  Texas,  153  U.  S.  535;  U.  S.  v.  Cruikshank,  92  Id. 
542. 

™Kimmish  v.  Ball,  129  Id.  217;  Missouri,  etc.,  R.  Co.  v.  Haber, 
100  U.  S.  013. 


UNIVERSITY 


OF 

fQ 

THE   FoL'RTEEXTti    AMENDMENT. 

Husen,69  holding  void  a  statute  prohibiting  the  introduc- 
tion into  the  state  during  eight  months  of  the  year  of 
Texas  cattle.  The  latter  case  was  held  not  within  the 
police  power.  The  exclusion  total  of  all  Texas,  Mexican 
or  Indian  cattle,  diseased  or  not,  was  beyond  needful 
police  power.  This  case  seems  to  recognize  that  the  com- 
merce clause  is  not  to  be  construed  as  a  surrender  by  the 
state  of  its  police  power,  and  at  the  same  time  seems  else- 
where to  assert  the  contrary,  by  holding  that  as  the  power 
of  Congress  to  regulate  interstate  commerce  is  plenary, 
it  is  a  surrender  of  state  police  power.  This  plenary 
power  of  legislation  in  Congress  under  the  commerce 
clause  does  not  exist  under  the  Fourteenth  Amendment. 
The  latter  only  authorizes  restrictive  legislation,  as  stated 
in  the  Civil  Eights  Cases.70 

Execution  of  Death  Sentence  by  Electricity  —  The  clause 
of  the  Fourteenth  Amendment  against  state  abridgment 
of  privileges  and  immunities  was  appealed  to  against  a 
state  statute  changing  the  execution  of  death  sentence 
from  hanging  to  electrocution  ;  but  it  was  held  not  to  in- 
validate the  law.71 

Solitary  Confinement  of  Felons  until  Execution  of  Death 
Sentence.  —  Statute  directing  it  held  valid.72 

Assemblages  to  Petition  Government  of  the  United  States 
for  "redress  of  grievances,  or  for  anything  connected  with 
the  powers  and  duties  of  the  national  government,  is  an 
attribute,  a  privilege,  of  national  citizenship,  and  as  such 
under  the  protection  of  and  guaranteed  by  the  United 

«»  95  U.  S.  465. 

™  109  U.  S.  3. 

7i  In  re  Kemmler,  136  U.  S.  436. 

"  McElvaine  v.  Brush,  142  U.  S.  155. 


94:  tiWHTX    AND    2JRI VI  LEGES    UNDER 

States.  The  very  idea  of  a  government  republican  in 
form  implies  that  right,  and  an  invasion  of  it  presents  a 
case  within  the  sovereignty  of  the  United  States."  73 

Eight  to  take  Homestead  or  Preempt  Land  under  federal 
law  is  a  privilege  national,  to  be  vindicated  by  national 
law.74 

Minors  in  Saloons. — A  statute  imposing  a  penalty  for 
allowing  a  minor  to  remain  in  a  saloon  was  held  not  to 
violate  the  Fourteenth  Amendment  as  depriving  a  citi- 
zen of  privileges.75 

Sunday  Law  requiring  places  of  business  to  be  closed 
that  day  does  not  violate  the  Fourteenth  Amendment  as 
to  abridging  privileges  of  federal  citizens;  it  touches 
only  rights  of  state  citizens.  It  is  within  the  police  power 
and  valid.76  Cases  conflict. 

Vaccination  as  Essential  to  Attend  School — Statute  not 

x~ 

void  under  the  Fourteenth  Amendment.77 
\  Eight  of  Contract— Civil  Rights  Act.— The  Civil  Eights 
Act  gives  every  "person"  within  national  jurisdiction 
"the  same  right"  to  contract,  give  evidence,  sue,  have 
the  benefit  of  all  laws  for  security  of  person  and  property, 
and  to  acquire  and  transfer  property,  "as  is  enjoyed  by 
white  persons."  Are  these  rights  "privileges  and  im- 
munities" under  the  clause  of  the  amendment  now  under 
consideration  ?  Can  it  be  sustained  as  constitutional  by 
the  clause  ?  I  do  not  think  it  falls  under  this  clause, 

73  U.  S.  v.  Cruikshank,  92  U.  S.  542. 

74  U.  S.  v.  Waddill,  112  U.  S.  76. 

73  Peopie  v.  Japinga,  115  Mich.  222;  Gastineau  v.  Ky.  49  L.  R.  A. 
111. 

76  State  v.  Fernandez,  39  La.  Ann.  538 :  People  v.  Pellet,  41  Am. 
St.  R.  589,  45  L.  R.  A.  504;  Petit  v.  Minnesota,  177  U.  S.  164. 
Contra  Denver  v.  Bach.  58  Pac.  1089. 

77Bissell  v.  Davisson,  65  Conn.  183. 


THE    FOURTEENTH     AMENDMENT.  95 

though  one  would  be  disposed  to  call  the  rights  given  by 
that  act  privileges  of  high  cast.  The  act  gives  these 
rights  to  all  "persons"  within  federal  jurisdiction, 
whether  citizens  of  the  United  States  or  not;  whereas 
the  amendment  in  the  present  clause  protects  privileges 
and  immunities  of  only  national  citizens,  the  act  being 
in  this  respect  broader  than  the  amendment.  The  act 
grants  these  rights  only  to  colored  persons,  as  its  language 
shows.78  It  could  not,  therefore,  intend  to  cover  the  ground 
of  this  clause  of  the  amendment,  which  defends  the  privi- 
leges and  immunities  of  federal  citizens,  white  or  colored. 
And  this  clause  only  warrants  congressional  legislation 
as  regards  privileges  and  immunities  of  national  citizens, 
whereas  this  act  is  for  all  persons.  Hence  we  must  look 
to  other  clauses  for  authority  for  this  great  act.  We  shall 
find  it  in  later  provisions  of  the  amendment  denying  to 
states  the  power  to  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law,  or  to  withhold  the 
equal  protection  of  the  laws.  As  the  act  finds  its  full 
shelter  under  them,  the  present  privilege  clause  does  not 
apply,  as  it  was  not  intended  to  be  as  broad,  or  cover  the 
same  ground  as  subsequent  clauses. 

As  the  privilege  and  immunity  clause  is  limited  to 
privileges  and  immunities  of  national  citizenship  in  terms, 
as  distinguished  from  state  citizenship,  not  so  many  rights 
fall  under  it,  as  federal  privileges  are  less  numerous  than 
those  of  state  citizens  under  state  law.  In  addition,  no 
federal  privileges  or  immunities  are  protected  by  this 
clause  that  were  not  protected  before  it  came,  or  which 
would  not  be  protected  without  it.  How  could  a  state 

.  Stat.  §§1077.  1078;  U.  S.  v.  Sanies.  48  Fed.  78. 


96  RIGHTS    AND    PRIVILEGES    UNDER 

prejudice  a  federal  privilege?  The  federal  power  would 
intervene  for  its  protection  without  this  amendment. 
True,  the  amendment  gives  Congress  power  to  enforce  it ; 
but  it  is  supposed  that  efficacious  remedy  for  infraction 
of  a  federal  privilege  would  exist  without  this  clause. 
Hence  the  great  utility  of  this  clause  is  not  apparent.  The 
core  of  this  great  amendment  lies  in  its  guaranty  of  life, 
liberty,  property  and  equality  before  the  law. 


THE*    FOURTEENTH     AMENDMENT.  97 


Chapter  7. 

LIFE,  LIBERTY,  PROPERTY,  EQUAL  PROTEC- 
TION  OF   LAW. 

At  the  threshold  of  the  discussion  of  the  clauses  of  the 
Fourteenth  Amendment  touching  these  subjects,  it  is 
proper  to  say  that  it  is  no  matter  by  what  proceeding,  or 
in  what  manner,  the  state  deprives  the  person  of  life, 
liberty  or  property,  or  denies  him  the  equal  protection  of 
the  law,  without  due  process  of  law,  whether  by  legisla- 
tion or  judicial  decision,  or  by  what  officer  or  agent,  or 
agency,  so  it  be  by  state  authority,  or  by  any  subordinate 
division,  as  by  municipal  corporation,  the  result  is  the 
same,  and  is  equally  prohibited.  But  it  is  only  the  state 
that  is  prohibited,  not  individual  action.  It  does  not 
touch  individual  action.1  The  infraction  of  the  amend- 
ment may  be  by  a  municipal  corporation,  or  by  the  state 
legislature,  or  governor.2  It  is  different  with  that  clause 
of  the  original  constitution  which  prohibits  a  state  from 
passing  any  "law"  impairing  the  obligation  of  contracts; 
for  as  the  word  law  is  used,  it  has  been  adjudged  that 
this  provision  "is  aimed  at  the  legislative  power  of  the 

i  Virginia  v.  Rives,  100  U.  S.  313;  C.  B.  &  Q  Co.  v.  Chicago,  166 
U.  S.  226. 

-  Perm  Mutual  v.  City  of  Austin,  168  U.  S.  685. 


98  RIGHTS    AND    PRIVILEGES    UNDER 

state,  not  a  decision  of  its  courts,  or  acts  of  executive  or 
administrative  boards  or  officers,  or  doings  of  private  cor- 
porations or  individuals. "fx 

But  any  agency  of  the  state,  where  it  has  power  to 
make  "law,"  as  a  municipality  laying  tax  violative  of 
contract,  may  infract  this  contract  clause. 

Note,  that  in  the  Fourteenth  Amendment  the  word 
"law"  is  used  in  the  first  provision  saying  that  "no  state 
shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States," 
but  not  in  the  subsequent  clauses,  which  broadly  declare 
that  no  state  shall  "deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law,  nor  deny  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the 
law."  Here  the  prohibition  is  upon  the  state,  whether 
its  harmful  act  be  by  legislature,  court  or  officer. 

MAGNA   CHAKTA. 

Sacred  things  should  be  preserved  in  perpetual  memo; 
rial.  In  all  the  tomes  of  the  written  law  of  the  wasting 
centuries  there  is  no  more  sacred  monument  erected  by 
man  struggling  for  freedom  than  is  the  Great  Charter. 
It  is  holy,  because  to  the  reader  of  history  it  goes  back 
and  tells  of  the  woes  and  sufferings  of  man  under  the 
yoke  of  tyranny  and  autocratic  government,  and  of  his 
final  success  in  the  struggle  for  human  right;  and  it 
tells  of  the  promise  arid  guaranty  of  everlasting  human 
freedom.  The  tree  has  borne  its  enduring  fruit.  Liberty 
is  sanctified  in  Magna  Charta.  It  will  never  perish 

s  N.  O.  Water  Works  v.  La.  Sugar  Co.,  125  U.  S.  18. 


THE    FOURTEENTH     AMENDMENT.  99 

from  the  earth.  It  is  the  child  of  political  evolution, 
and  evolution  never  works  backward.  The  Anglo-Saxon 
wherever  he  has  planted  his  foot  has  enshrined  Magna 
Charta  in  his  constitutional  law.  Whether  he  is  in  Eng- 
land or  her  colonies  in  distant  seas,  or  is  in  the  great  Amer- 
ican Republic  or  its  colonies  in  distant  seas,  he  will  never 
give  up  Magna  Charta.  It  is  bone  of  his  bone,  sinew 
of  his  sinew.  He  will  know  no  change  or  shadow  of  turn- 
ing in  this  regard.  Revolutions  never  go  backward.  It 
is  thus  a  fitting  initial  under  the  important  heading  of 
life,  liberty  and  property,  and  equality  before  the  law, 
to  incorporate  the  not  classical,  but  plain  and  robust, 
Latin  in  which  Magna  Charta  was  extorted  from  King 
John  by  the  sturdy  Barons  of  England  at  Runnymede, 
in  June,  1215 ;  for  this  is  the  progenitor  of  the  immortal 
principles  of  freedom  found  in  all  the  American  constitu- 
tions, and  in  the  national  Constitution. 

"Ne  corpus  liberi  hominis  capiatur  nee  imprisonetur 
nee  disseisietur  nee  utlagetur  nee  exuletur,  nee  aliquo 
modo  destruatur,  nee  rex  eat  vel  mittat  super  eum  m, 
nisi  per  judicium  parium  suorum,  vel  per  legem  terrae." 

"Let  not  the  body  of  a  freeman  be  taken  or  imprisoned 
or  (he)  be  disseised  or  outlawed  or  exiled,  nor  let  him 
be  in  any  manner  destroyed,  nor  let  the  King  go  or  send 
against  him  with  force,  except  by  the  judgment  of  tis 
peers  or  the  law  of  the  land." 

Those  two  words,  "liberi  hominis/'  apply  the  blessings 
of  this  charter  to  all  free  people,  as  "homo"  means  man, 
woman,  child,  mankind,  the  same  as  "person"  in  our 
amendment.  We  omit  tho  word  liber,  free,  because  we 
are  all  freemen,  unlike  England  in  1215.  How  conse- 


100  RIGHTS    AND    PRIVILEGES    UNDER 

crated  in  English  hearts  was  the  Great  Charter  we  may 
know  from  the  fact  that  it  was  required  to  be  read  aloud 
in  cathedral  churches  twice  a  year,  and  by  sheriffs  four 
times  a  year  in  open  county  court,  and  all  archbishops  and 
bishops  were  by  Statute  25,  Edward  I.,  required  to  pro- 
nounce ecclesiastical  excommunication  against  all  violat- 
ing it.  This  was  the  curse : 

"In  the  name  of  the  Father,  Son  and  Holy  Ghost, 
Amen.  Whereas,  Our  sovereign  Lord,  the  King,  to  the 
honor  of  God  and  the  Holy  Church,  and  for  the  common 
profit  of  the  realm,  hath  granted  for  him  and  his  heirs 
forever,  these  articles  above  written;  Robert,  Arch- 
Bishop  of  Canterbury,  primate  of  all  England,  ad- 
monisheth  all  his  province,  once,  twice  and  thrice:  Be- 
cause that  shortness  will  not  suffer  so  much  delay  as  to 
give  knowledge  to  all  the  people  of  England  of  these 
presents  in  writing;  we  therefore  enjoyn  all  persons,  of 
what  estate  soever  they  may  be,  that  they  and  every  of 
them,  as  much  as  in  them  is,  shall  uphold  and  maintain 
these  articles  granted  by  our  Sovereign,  the  King,  in  all 
points.  And  all  those  that  in  any  point  do  resist  or  break 
those  ordinances,  or  go  about  it,  by  word  or  deed,  openly 
or  privily,  by  any  manner  of  pretense,  or  color,  We,  the 
aforesaid  Arch-Bishop,  by  our  authority  in  this  writing 
expressed,  do  excommunicate  and  accurse,  and  from  the 
body  of  our  Lord  Jesus  Christ,  and  from  all  the  company 
of  Heaven,  and  from  all  the  sacraments  of  Holy  Church, 
do  sequester  and  exclude." 

History  says  that  this  Great  Charter  was  wrested  from 
John  by  the  English  barons  by  force ;  but  those  nobles 
did  not  this  work  for  themselves.  The  Great  Commoner, 


THB    FOURTEENTH     AMENDMENT.  1Q1 

in  the  House  of  Lords  in  1770,  said:  "They  did  not  say, 
these  are  the  rights  of  the  great  barons,  or  these  are  the 
rights  of  the  great  prelates.  Xo,  my  lords;  they  said  in 
the  simple  Latin  of  the  time,  Nullus  liber  homo,,  and  pro- 
vided as  carefully  for  the  meanest  subject  as  for  the 
greatest.  These  are  uncouth  words,  and  sound  but  poorly 
in  the  ears  of  scholars;  neither  are  they  addressed  to  the 
criticism  of  scholars,  but  to  the  hearts  of  freemen.  These 
three  words  have  a  meaning  which  interests  us  all;  they 
deserve  to  be  remembered,  they  deserve  to  be  inculcated 
in  our  minds,  they  are  worth  all  the  classics." 

The  American  states  are  indebted  to  England  for 
their  constitutional  liberty,  a  heritage  which  must  always 
endear  the  mother  country  to  every  true,  fairminded 
American.  From  her  we  derived  our  laws,  our  freedom, 
our  language,  our  religion — all  we  hold  most  dear  and 
sacred.  The  Anglo-Saxon  hath  builded  well  wherever 
he  has  set  his  sole;  his  structures  are  eternal,  imperish- 
able ;  he  will  dominate  the  world,  not  by  fire  and  sword, 
not  by  tyranny  and  oppression,  but  by  civilization,  educa- 
tion, and  the  undying  principles  of  Magna  Charta. 

Old  as  the  Charter  is,  Coke  says  that  its  rights  belonged 
to  the  English  people  long  before  1215,  and  that  "this  stat- 
ute of  magna  charta  is  but  a  confirmation  or  restitution  of 
the  common  law."  He  says:  "It  is  called  Magna  Charta, 
not  for  the  length  or  largeness  of  it  (for  it  is  but  short  in 
respect  of  the  charters  granted  of  private  things  to  private 
persons,  being  elephantinae  chartae),  but  it  is  called  the 
great  charter  in  respect  of  the  great  weightiness  or  weighty 
greatness  of  the  matter  contained  in  it  in  a  few  words> 
being  the  fountain  of  all  the  fundamental  laws  of  the 


102  RIGHTS    AND    PRIVILEGES    UNDER 

realm,  and  therefore  it  may  be  truly  said  of  it  that  it  is 
magnum  in  parvo.4 

Our  English  fathers  lost  its  liberties  at  times ;  tyranny 
often  sought  to  forget  or  annul ;  but  those  sturdy  freemen 
demanded  and  had  the  charter  confirmed  above  thirty 
times,  according  to  Lord  Coke.  We  boast  of  the  wisdom 
of  our  American  forefathers  in  the  engraf tment  of  free 
principles  in  our  fabric ;  but  the  palm  belongs  to  those 
old  English  barons.  Illustrious  is  the  parentage  of  those 
immortal  principles  of  human  liberty  imbedded  in  Ameri- 
can constitutional  law.  The  Great  Charter  was  reaffirmed 
in  1216,  in  the  infancy  of  John's  son,  Henry  III.,  by  the 
advice  of  Gualo,  the  Pope's  legate.  When  of  age  Henry 
cancelled  it;  but  in  1254,  at  a  great  council  where  he  was 
present,  the  archbishop  of  Canterbury  and  bishops  of  the 
Roman  Catholic  church,  in  canonicals,  with  tapers  burn- 
ing, denounced  sentence  of  excommunication  upon  the 
breakers  of  this  covenant  of  liberty,  no  matter  how  high 
their  place,  and  Henry  restored  the  charter.  Thus  the 
church,  to  its  renown  and  honor,  stood  the  godfather  and 
patron  of  human  rights.  She  never  saw  a  more  illustrious 
day  in  her  long  history,  nor  performed  a  higher  act  for 
man  on  earth.  The  charter  hath  been  given  to  us.  Shall 
we,  of  England  and  America,  keep  it?  Unquestionably. 
The  forward  march  of  man,  the  freedom  of  speech  and 
press,  popular  education,  human  evolution  and  exaltation, 
all  forbid  that  the  children  shall  give  up  this  holy  testa- 
ment of  the  fathers. 


"For  freedom's  battle  once  begun, 
Is  handed  down  from  sire  to  son." 


*  1  Coke  Lyt.  22. 


• 


THE     FOURTEENTH     AMENDMENT.  1Q3 

LIFE,  LIBERTY  AND  PROPERTY. 

We  come  now  to  that  clause  of  the  Fourteenth  Amend- 
ment saying,   "Nor  shall  any  state  deprive  any  person 
of  life,  liberty  or  property  without  due  process  of  law." 
A  vastly  important  clause  is  this  one,  as  before  stated. 
It  is  nothing  new.     It  is  only  Magna  Charta  over  again. 
It  is,  and  before  this  amendment  was,  in  all  the  state 
constitutions.    It  was  not  a  stranger  to  the  national  Con- 
stitution before  the  birth  of  the  Fourteenth  Amendment; 
for   it  is  found  in  the  Fourth   Amendment;     but  that 
amendment,  as  also  every  one  of  the  first  ten  amendments, 
operates   only  on  the   national   government,   not   on   the 
states ;  5  so  that  until  the  Fourteenth  Amendment  came 
there  was  not  any  right  or  color  of  power  in  the  national 
government  to  compel  a  state  to  concede  to  its  own  citizens, 
or  persons   under   its  jurisdiction,   rights   of   even   life, 
liberty  or  property,  nor  restrain  a  state's  action  hostile 
thereto  by  any  coercive  or  supervisory  power,  legislative, 
executive  or  judicial.     In  the  long  life  of  the  government 
there  had  been  no  call  for  this  restraining  hand  upon  the 
states.     They  had  been  sovereign  therein  up  to  the  adop- 
tion of  this  amendment.    We  are  thus  naturally  led  to  ask, 
What  event  caused  the  great  change  bringing  in  its  train 
the  great  augmentation  of  national  power  over  the  states  ? 
The  answer  is,  the  Civil  War  and  its  logical  results  upon 
the  condition  of  millions  of  people.     The  call  for  that 
amendment  was  not  to  curb  the  power  of  the  states  to 
secede  from  the  Union,  and  destroy  it;    that  was  settled 
by  the  arbitrament  of  arms ;   but  the  moving  object,  pur- 
's Spies  v.  Illinois,  123  U.  S.  131,  166. 


104  RIGHTS    AND    PRIVILEGES    UNDER 

pose  and  necessity  for  the  amendment  was  the  altered 
condition,  as  a  result  of  the  war,  of  the  millions  of  slaves, 
from  that  of  slaves  to  freemen,  and  their  inequality  with 
other  men  before  the  laws  of  the  states.  It  would  seem 
that  so  soon  as  the  Thirteenth  Amendment  was  adopted, 
as  it  abolished  slavery,  that  instant  the  law  in  those  states 
where  slavery  had  existed  giving  white  persons  security 
of  life,  liberty  and  property,  would  attach  to  the  en- 
franchised slave,  where  the  letter  of  state  law  did  not  make 
a  distinction  between  white  and  colored  persons;  nor  do 
we  know  that  this  proposition  has  been  denied  in  those 
states;  but  at  the  close  of  the  war  the  constitutions  and 
statutes  of  the  former  slave  states  contained  provisions 
made  during  the  existence  of  slavery  discriminating  in 
very  many  vital  respects  between  white  and  colored  per- 
sons. The  history  of  those  times  tells  us  that  it  was 
feared  that  owing  to  the  feelings  and  prejudices  growing 
out  of  the  late  slavery  on  the  part  of  white  persons  in 
those  states,  these  essential  rights  would  be  denied  or  in- 
adequately secured,  unless  a  power  were  incorporated  in 
the  federal  Constitution  enabling  the  nation,  in  case  such 
rights  should  be  denied  or  invaded,  to  intervene  for  their 
protection.  On  this  line  of  argument  Judge  Cooley,  with 
all  his  conservatism,  strongly  defends  the  need  and  jus- 
tice of  the  amendment.6  Protection  to  the  ex-slaves  was 
the  moving,  immediate  cause  of  the  Fourteenth  Amend- 
ment, and  the  supreme  court  has  said  that  that  fact  must 
be  kept  in  mind  in  its  construction.7  The  court  said: 
"An  examination  of  the  history  of  the  causes  which  led 

e  Story,  Constitu.  Ch.  47   ( 5th  Ed. ) . 
i  Slaughter  House  Cases,  16  Wall.  36. 


THE     FOURTEENTH     AMENDMENT.  1Q6 

to  the  adoption  of  those  amendments  and  of  the  amend- 
ments themselves  demonstrates  that  the  main  purpose  of 
all  the  last  three  amendments  was  the  freedom  of  the  Af- 
rk-an  race,  the  security  and  perpetuation  of  that  freedom, 
and  their  protection  from  the  oppressions  of  the  white 
men  who  had  formerly  held  them  in  slavery."  This  has 
been  criticised  as  assigning  too  narrow  an  object  to  the 
amendment,  as  limiting  its  benefit  to  the  colored  people. 
It  seems  to  me  that  the  Supreme  Court,  in  the  words 
quoted,  intended  to  give  the  amendment  no  such  limita- 
tion, and  only  meant  that  its  occasion  should  be  ever 
kept  in  mind  as  suggesting  that  the  national  authority 
should  not  be  too  radical  in  exercising  jurisdiction  over 
the  states  under  it — a  jurisdiction  beyond  what  was  meant 
in  its  adoption,  under  the  well-known  rule  that  in  con- 
struing statutes  we  must  have  in  mind  the  evil  to  be  rem- 
edied. Be  this  as  it  may,  the  amendment  applies  clearly 
to  all,  white  or  colored,  without  regard  to  race.  In  Strau- 
der  v.  West  Virginia8  it  is  held:  "The  Fourteenth 
Amendment  considered  and  held  to  be  one  of  a  series  of 
constitutional  provisions  having  common  purpose,  namely, 
to  secure  to  a  recently  emancipated  race,  which  had  been 
held  in  slavery  through  many  generations,  all  the  civil 
rights  that  the  superior  race  enjoy,  and  to  give  to  it  the 
protection  of  the  general  government  in  the  enjoyment 
of  such  rights  whenever  they  should  be  denied  by  the 
states.  Whether  the  amendment  had  other,  and  if  so, 
what,  purposes,  not  decided.  The  amendment  not  only 
gave  citizenship  and  privileges  of  citizenship  to  persons 
of  rolor,  but  denied  to  any  state  the  power  to  withhold 
«100  u.  S.  303. 


106  RIGHTS    AND    PRIVILEGES    UNDER 

from  them  the  equal  protection  of  the  law,  and  invested 
Congress  with  power,  by  appropriate  legislation,  to  en- 
force its  provisions.  The  amendment,  though  prohibi- 
tory in  terms,  confers  by  necessary  implication  a  posi- 
tive immunity,  a  right  most  valuable,  to  persons  of  the 
colored  race — the  right  to  exemption  from  unfriendly 
legislation  against  them  distinctively  as  colored — exemp- 
tion from  discriminations  imposed  by  public  authority, 
which  imply  legal  inferiority  in  civil  society,  lessen  the 
security  of  their  rights,  and  are  steps  towards  reducing 
them  to  the  condition  of  a  subject  race." 

If  the  criticism  above  mentioned  of  the  Slaughter 
House  Cases,  as  tending  to  narrow  the  efficacy  of  the 
amendment  to  the  colored  race,  was  ever  well  taken,  it 
has  been  dispelled  by  a  later  decision,9  holding  that  "the 
guaranties  of  protection  contained  in  the  Fourteenth 
Amendment  extend  to  all  persons  within  the  territorial 
jurisdiction  of  the  United  States,  without  regard  to  dif- 
ferences of  race,  color  or  nationality."  In  Virginia  v. 
Rives10  it  is  held  that  the  amendment  secures  equal  rights 
to  all  persons. 

»Yick  Wo  v.  Hopkins,  118  U.  S.  356. 
10  100  U.  S.  313. 


THE    FOURTEENTH     AMENDMENT.  1Q7 


Chapter  8. 


LIFE. 

We  need  give  no  definition  here.  The  amendment  pro- 
tects life  and  limb  against  attack,  except  only  by  due 
process  of  law.  This  concedes  the  right  of  the  state  to 
take  even  life  under  the  high  behest  and  necessity  of 
government,  provided  it  be  taken  by  due  process.  The 
federal  government  has  no  pretence  or  color  for  inter- 
vention, even  under  the  Fourteenth  Amendment,  in  the 
usual  enactment  and  administration  of  the  state's  crimi- 
nal law.1  This  function  of  the  state  falls  under  the  po- 
lice power.  It  is  by  virtue  of  the  original  sovereignty  of 
the  state  that  she  can  wield  the  police  power,  inherent  in 
the  state  ab  iniiio,  and  on  this  power  the  whole  criminal 
law  of  the  state  rests,2  and  the  Fourteenth  Amendment 
has  not  taken  from  the  states  the  police  power.3 

"The  people  of  a  state  are  entitled  to  all  prerogatives 
formerly  vested  in  the  king,  subject  only  to  limitations 
imposed  by  the  Constitution  of  the  nation  or  state.  The 
states  retain  all  their  original  powers  of  sovereignty,  ex- 

1  Strader  v.  Graham,  10  How.  82. 

2  1  Mcf'lain  Orim.  Law.  §23. 

sBarbier  v.  Connelly,  113  U.  S.  27;  Powell  v.  Pennsylvania,  127 
U.  S.  678. 


108  RIGHTS    AND    PRIVILEGES    UNDER 

cept  so  far  as  the  Constitution  vests  them  in  the  nation, 
or  prohibits  their  exercise  by  the  state."  4 

The  criminal  jurisprudence  was  never  granted  to  the 
nation,  and  is  left  to  the  states,  both  because  never  granted 
away,  and  because  of  Amendment  Ten  saying  that  all 
powers  not  granted  to  the  nation  are  reserved  to  the 
states.5 

It  is  hardly  necessary  to  say  again  that  the  amendment 
does  not  touch  the  case  of  the  individual  or  mob  murder, 
as  it  deals,  not  with  acts  of  individuals,  but  only  with 
action  by  the  state  through  its  constituted  authorities.6 
Such  murders  by  individuals  or  mobs  are  to  be  dealt  with 
only  by  the  states. 

*  Lansing  v.  Smith,  21  Am.  D.  89;  Blair  v.  Ridgely,  97  Id.  248 
and  note;  Corn  v.  Erie  Co.,  1  Am.  R.  399. 

s  McElvain  v.  Brush,  142  U.  S.  155. 

« Virginia  v.  Rieves,  100  U.  S.  313;  ex  parte  Virginia,  Id.  339; 
Civil  Rights  Cases,  109  Id.  3. 


TUB    FOURTEENTH     AMENDMENT.  1Q9 


Chapter  9. 


LIBEKTY. 

What  is  its  meaning  as  used  in  the  Fourteenth  Amend- 
ment? Does  it  mean  merely  immunity  from  bodily  de- 
tention in  a  penitentiary  or  jail  ?  Certainly  not.  So 
narrow  a  meaning  to  this  word  in  a  constitution,  state 
or  federal,  would  shear  it  of  force  and  emasculate  its 
strength  to  perform  necessary  offices,  which  no  other  pro- 
vision of  the  constitution  would  perform.  Its  meaning 
in  Magna  Charta,  and  this  amendment  is  only  a  repeti- 
tion of  that,  as  expounded  by  Blackstone,  is:  "Next  to 
personal  security,  the  law  of  England  regards,  asserts  and 
preserves  the  personal  liberty  of  individuals.  This  per- 
sonal liberty  consists  in  the  power  of  locomotion,  of  chang- 
ing situation,  or  moving  one's  person  to  whatsoever  place 
one's  own  inclination  may  direct,  without  imprisonment 
or  restraint,  unless  by  due  course  of  law."  1  This  is  too 
narrow  a  definition  of  liberty.  Under  the  two  words 
"life"  and  "liberty"  Blackstone  would  cover  personal  se- 
curity and  personal  liberty.  So  does  the  amendment. 
But  under  what  Blackstone  calls  "personal  liberty"  what 
shall  we  secure  under  the  Fourteenth  Amendment?  Lib- 

i  1  Bl.  Com.  134. 


HO  RIGHTS    AND    PRIVILEGES    UNDER 

erty  does  not  mean  merely  freedom  from  imprisonment 
of  the  body.  Under  the  term  "personal  security"  Black- 
stone  defends  "enjoyment  of  life,  limb,  body,  health  and 
reputation."  2  We  can  say  that  the  words  "life  and  lib- 
erty" in  our  state  constitutions  cover  the  things  specified 
by  Blackstone,  but  they  cover  more.  They  cover  both 
personal  security  and  personal  liberty,  I  repeat.  But 
what  does  the  word  "liberty"  mean  in  American  con- 
stitutions ?  This  is  the  test  question  here,  for  it  means 
in  the  Fourteenth  Amendment  just  what  it  means  in 
the  state  constitutions.  It  means  personal  liberty.  This 
includes  more  than  mere  exemption  from  imprisonment. 
I  should  say  that  it  means  exemption  or  immunity  from 
unlawful  imprisonment  or  detention  of  the  body,  free- 
dom to  go  and  come  on  lawful  business  or  pleasure,  com- 
monly called  the  right  of  locomotion;  the  right  to  ac- 
quire, hold  and  convey  property;  the  right  to  make  con- 
tracts and  to  labor  in  any  lawful  calling  to  earn  a  living ; 
to  marry  and  have  family.  Jjj 

In  State  v.  Peel  Splint  Coal  Company3  the  author  wrote 
as  follows:  "The  word  'liberty/  as  here  used,  does  not 
mean  simply  exemption  from  bodily  imprisonment,  but 
liberty  and  freedom  to  engage  in  lawful  business,  to  make 
lawful  contracts  therein,  to  the  end  of  earning  a  liveli- 
hood for  self  and  family,  and  of  acquiring  and  enjoying 
property,  and  of  obtaining  happiness.  The  right  to  con- 
tract and  be  contracted  with  is  indispensable  to  these  in- 
dispensable objects.  Elsewhere  this  great  right  is  recog- 
nized in  the  constitutions  by  the  provision  that  contracts 

2  1  Bl.  Com.  129. 

s  36  W.  Va.  856.     See  Williams  v.  Fears,  179  U.  S.  — ,  21   Sup. 
Ct.  129. 


THt)     FOURTEENTH     AMENDMENT. 

made  in  its  exercise  shall  not  be  impaired.  It  is  a  priv- 
ilege essential  to  earn  bread  and  secure  happiness.  Vain 
would  be  the  pursuit  of  happiness  if  the  right  of  contract 
necessary  to  secure  the  bread  of  life  and  raiment  and 
home  be  taken  away.  Scarcely  any  of  the  great  cardinal 
rights  are  more  universally  recognized  and  vindicated 
under  our  system,  indeed,  under  all  civilized  governments, 
than  this  right  of  contract.  A  man  must  have  the  right 
to  exercise  his  skill  and  talents  and  dispose  of  and  use 
his  labor  and  property  in  lawful  pursuits  as  to  him  shall 
seem  proper.  The  property  right  may  be  violated  by 
prohibiting  its  full  use  to  the  owner  as  effectually  as  by 
taking  it  from  him,  his  ownership  being  thus  damaged." 
In  State  v.  Goodwill4  Judge  Snyder,  delivering  the 
opinion  of  the  court,  said:  "The  court,  in  People  v. 
Gillson,  says:  'The  term  liberty,  as  used  in  the  Con- 
stitution, is  not  dwarfed  into  mere  freedom  from  phys- 
ical restraint  of  the  person  of  the  citizen,  as  by  in- 
carceration; but  is  deemed  to  embrace  the  right  of  a 
man  to  be  free  in  the  enjoyment  of  the  faculties  with 
which  he  has  been  endowed  by  his  Creator,  subject  only 
to  such  restraints  as  are  necessary  for  the  common  wel- 
fare. Liberty,  in  its  broad  sense,  as  understood  in  this 
country,  means  the  right,  not  only  of  freedom  from  serv- 
itude, imprisonment  or  restraint,  but  the  right  of  one  to 
use  his  faculties  in  all  lawful  ways,  to  live  and  work 
where  he  will,  to  earn  his  livelihood  in  any  lawful  calling, 
and  to  pursue  any  lawful  trade  or  avocation.  109  N.  Y/ 
398 ;  Field,  J.,  in  Butchers'  Union  Co.  v.  Crescent  City, 

*  33  W.  Va.  179.  25  Am.  St.  R.  863  and  note.    See  Re  Morgan,  58 
Pac.  1071   (full)  and  Johnson  v.  Goodyear,  59  Pac.  304  (full). 


112  RIGHTS    AND    PRIVILEGES    UNDER 

etc.,  Co.,  Ill  U.  S.  755;  Association  v.  Crescent  City  Co., 
1  Abb.  398.  .  .  The  property  which  every  man  has 
in  his  own  labor,  as  it  is  the  original  foundation  of  all 
other  property,  so  it  is  the  most  sacred  and  inviolable. 
The  patrimony  of  the  poor  man  lies  in  the  strength  and 
dexterity  of  his  own  hands;  and  to  hinder  him  from  em- 
ploying these  in  what  manner  he  may  think  proper,  with- 
out injury  to  his  neighbor,  is  a  plain  violation  of  this 
most  sacred  property.  It  is  equally  an  encroachment, 
both  upon  the  just  liberty  and  rights  of  the  workman  and 
his  employer,  for  the  legislature  to  interfere  with  the  free- 
dom of  contract  between  them,  as  such  interference  hin- 
ders the  one  from  working  at  what  he  thinks  proper,  and 
at  the  same  time  prevents  the  other  from  employing  whom 
he  chooses.  A  person  living  under  the  protection  of  this 
government  has  the  right  to  adopt  and  follow  any  lawful 
industrial  pursuit,  not  injurious  to  the  community,  which 
he  may  see  fit.  And,  as  incident  to  this,  is  the  right  to 
labor  or  employ  labor,  make  contracts  in  respect  thereto 
upon  such  terms  as  may  be  agreed  upon  by  the  parties, 
to  enforce  all  lawful  contracts,  to  sue,  and  give  evidence, 
and  to  inherit,  purchase,  lease,  sell  and  convey  prop- 
erty of  every  kind.  The  enjoyment  or  deprivation  of 
these  rights  and  privileges  constitutes  the  essential  dis- 
tinction between  freedom  and  slavery;  between  liberty 
and  oppression.  These  principles  have  been  fully  recog- 
nized and  announced  in  many  decisions  of  the  Supreme 
Court  of  the  United  States  and  other  courts."  Numer- 
ous cases  are  there  cited. 

The  Civil  Rights  Act  can  be  justified  in  every  item  of 
its  grant  by  the  clause  protecting  life,  liberty  and  prop- 


THE     FOURTEENTH     AME\DMLM.  U3 

erty.  It  has  been  held  in  numerous  cases,  and  seems  well 
settled,  that  a  law  denying  the  right  to  contract  or  acquire 
property  is  an  infraction  of  the  right  of  liberty.  "Lib 
erty  includes  the  right  to  acquire  property,  and  that  means 
to  make  and  enforce  contracts."  5  The  Civil  Rights  Act 
was  made  to  enforce  the  Fourteenth  Amendment.6 

-"Constitutional  liberty  means  not  only  freedom  of  the 
citizen  from  servitude  and  restraint,  but  includes  the 
right  of  every  man  to  be  free  in  the  use  of  his  powers  and 
faculties,  and  to  adopt  such  avocation  or  calling  as  he  may 
choose,  subject  only  to  the  restraints  necessary  for  the  com- 
mon welfare.  Rights  of  property  preserved  by  all  con- 
stitutions is  right  not  only  to  possess  and  enjoy  it,  but 
also  to  acquire  it  in  any  lawful  mode,  or  by  following 
lawful  pursuit.  The  property  which  each  citizen  has  in 
his  own  labor  is  a  common  heritage,  and  as  an  incident 
to  the  right  to  acquire  other  property,  the  liberty  to  enter 
into  contracts  by  which  labor  may  be  employed  in  such 
way  as  the  laborer  shall  deem  most  beneficial,  and  of 
others  to  employ  such  labor,  is  necessarily  included  in  the 
constitutional  guaranty.  Right  to  contract  is  both  a  lib- 
erty and  a  property  right.  If  any  person  is  denied  the 
right  to  contract  and  acquire  property  in  the  manner  in  ' 
which  he  has  hitherto  enjoyed  it  under  the  law,  and  which 
others  are  still  allowed  by  law  to  enjoy,  he  is  deprived  of 
both  the  constitutional  right  of  liberty  and  property."  7 

s  Ritchie  v.  People,  155  111.  98,  46  Am.  St.  R.  315. 

«  Gibson  v.  Mississippi.  162  U.  S.  580 ;  Strauder  v.  West  Virginia, 
100  U.  S.  303. 

T  Bracewell  v.  People,  147  111.  66,  37  Am.  St.  R.  206 ;  Harding  v. 
People,  160  111.  450,  .V2  Am.  St.  R.  344;  Ruhstratt  v.  People,  185 
111.  133. 


114  RIGHTS    AND    PRIVILEGES    UNDER 

The  Missouri  court  said:  "The  right  of  life,  liberty 
and  property  are  grouped  together  in  the  same  sentence. 
They  constitute  a  trinity  of  rights,  and  each  as  opposed 
to  an  unlawful  deprivation  thereof  is  of  equal  constitu- 
tional importance.  With  each,  under  the  operation  of  a 
familiar  principle,  every  auxiliary  right,  every  attribute 
necessary  to  make  the  principal  right  effectual  and  valu- 
able in  its  most  extensive  sense  pass  as  incidents  to  the 
original  grant  The  rights  thus  guaranteed  are  some- 
thing more  than  mere  privilege  of  locomotion;  the  guar- 
anty is  the  negative  of  arbitrary  power  in  every  form; 
which  results  in  deprivation  of  right.  These  terms,  life, 
liberty  and  property,  are  representative  terms,  and  cover 
every  right  to  which  a  member  of  the  body  politic  is  en- 
titled under  the  law.  Within  their  comprehensive  scope 
are  embraced  the  right  of  self-defense,  freedom  of  speech, 
religious  and  political  freedom,  exemption  from  arbi- 
trary arrest,  right  to  buy  and  sell  as  others  may — all  our 
liberties,  personal,  civil,  political — in  short,  all  that  makes 
life  worth  living ;  and  of  none  of  these  rights  can  anyone 
be  deprived  except  by  due  process  of  law.  2  Story,  Con- 
stitu.,  §1950."  8 

The  Supreme  Court  of  the  United  States,  through  Jus- 
tice Field,  has  said  that  the  words  "life"  and  "liberty" 
cover  all  rights  which  the  Declaration  of  Independence 
declares  all  men  inalienably  endowed  with,  "life,  liberty 
and  the  pursuit  of  happiness" ;  that  the  words  included 
"the  right  of  men  to  pursue  happiness,  by  which  is  meant 
the  right  to  pursue  any  lawful  business  in  any  manner 
not  inconsistent  with  the  equal  rights  of  others,  which 

s  State  v.  Julow,  129  Mo.  172. 


THE     FOL'RTLESTU     AMENDMENT.  H5 

may  increase  their  property  or  develop  their  faculties, 
so  as  to  give  them  their  highest  enjoyment.  The  com- 
mon business  and  calling  of  life,  the  ordinary  trades  and 
pursuits,  which  are  innocuous  in  themselves,  and  have 
been  followed  in  all  communities  from  time  immemorial, 
must,  therefore,  be  free  in  this  country  to  all  alike  upon 
the  same  conditions.  .  .  The  right  to  pursue  them 
.  .  .  is  an  essential  element  of  that  freedom  which 
they  claim  as  a  birthright."9 

These  principles  are  reiterated  by  the  Supreme  Court 
in  a  later  case.10  The  Xew  York  court  holds  the  same 
construction.11 

These  copious  extracts  from  actual  judgments  of  the 
courts  will  show  how  comprehensive  and  efficient  is  this 
word  "liberty"  in  our  state  constitutions  and  the  Four- 
teenth Amendment.  If  we  did  not  give  it  such  compre- 
hensive import,  it  would  cripple  the  efficacy  of  what  was 
evidently  designed  to  cover  vital  fundamental  rights  and 
privileges.  That  word  alone  embraces  almost  all  the  es- 
sential rights  of  the  person,  and  when  we  add  to  it  the 
provision  guaranteeing  equality  before  the  law  and  the 
protection  of  life  and  property,  the  American  ireeman 
may  boast  that,  so  far  as  human  providence  and  watch 
can  attain,  the  citadel  of  his  rights  is  strong  and  secure. 
I  have  given  these  extracts  to  show  this,  and  also  because 
they  will  be  very  aidful  as  outlines  of  general  principles 
in  the  practical  daily  application  of  the  provisions  of  the 
constitution,  state  and  federal. 

o  Butchers'  Union    v.    Crescent   City,    111    U.   S.   757. 

10  Allgeyer  v.  Louisiana,  165  U.  S.  578. 

"People  v.  Warden,  157  N.  Y.  116,  43  L.  R.  A.  264. 


]16  RIGHTS    AND    PRIVILEGES    UNDER 

CIVIL  EIGHTS  ACT. 

Under  authority  of  the  Fourteenth  Amendment  Con- 
gress enacted  the  statute  called  The  Civil  Rights  Act.12 
It  gives  every  person  within  the  national  jurisdiction  "the 
same  right' '  to  contract,  sue,  give  evidence,  have  the  ben- 
efit of  all  laws  for  security  of  person  or  property,  and  to 
acquire  and  transfer  property,  "as  is  enjoyed  by  white 
persons."  The  rights  here  spoken  are  most  essential. 
Its  moving  occasion  was  undoubtedly  the  discrimination 
made  and  actually  existing  in  some  of  the  states  against 
colored  people  in  the  matters  of  contracting,  holding  and 
conveying  property,  suing  and  giving  evidence.  It  might 
seem  that  this  act  would  fall  under  the  ban  placed  by  the 
Supreme  Court  in  the  Civil  Rights  Cases  upon  another 
act,  the  act  admitting  colored  persons  into  inns  and  the- 
atres, on  the  score  that  it  is  original,  general  legislation, 
such  as  is  appropriate  to  state  legislatures,  and  not  to 
Congress;  but,  as  just  stated,  there  were  actual  laws  dis- 
abling colored  people  from  the  enjoyment  of  the  rights 
above  mentioned,  and,  therefore,  the  Civil  Rights  Act  is 
congressional  legislation  actually  called  for  to  counteract 
and  neutralize  existing  state  legislation  deprivative  of 
rights  protected  by  the  amendment,  and  not  general  leg- 
islation anticipatory  of  problematical  hostile  state  legis- 
lation, and,  therefore,  not  like  the  act  condemned  in  the 
Civil  Rights  Cases. 

While  slavery  prevailed  these  civil  rights  were  denied  to 
slaves,  and  necessarily  so,  because  they  are  rights  of  self- 
dependent  freemen,  not  harmonious  with  slavery,  and 

12  Rev.  St.  §§1977,  1978. 


THE    FOURTEENTH     AMENDMENT.  H7 

would  be  prejudicial  to  its  stability;  and  furthermore 
such  rights  were  not  essential  to  slaves,  because  their  mas- 
ters were  bound  to  support  them,  and  they  needed 
no  right  to  contract  or  have  property.  They  had  no 
civil  rights,  no  right  to  sue  in  any  court  any 
person.13  They  could  need  only  right  to  give  evi- 
dence for  self-protection,  or  laws  for  protection  of 
person;  but  while  laws  did  protect  them  against  murder, 
mayhem  or  cruel  chastisement,  slavery  would  naturally 
exclude  the  full  law  of  personal  protection.  When,  how- 
ever, slavery  was  eradicated,  root  and  branch,  by  the  Thir- 
teenth Amendment,  it  became  essential  and  indispensable 
that  these  rights  should  be  accorded  the  former  slaves. 
Without  these  great  fundamental  privileges  the  freeman 
is  not  a  real  freeman.  He  can  not  without  them  earn 
the  bread  of  life  for  himself  and  family,  nor  find  hap- 
piness. Without  them  vain  would  be  his  pursuit  of  it. 
These  rights  are  privileges  of  the  highest  cast.  Their  con- 
cession was  the  main  object  of  the  Fourteenth  Amendment. 
It  was  designed  to  destroy  and  prevent  state  laws  denying 
them,  and  enforce  their  recognition  by  the  states.  One  be- 
reft of  the  great  rights  of  giving  evidence,  contracting, 
suing,  having  the  benefit  of  laws  for  the  protection  of  per- 
son and  property,  and  right  to  acquire  and  transfer  prop- 
erty, has  in  no  sense  the  equal  protection  or  benefit  of  the 
law,  and  would  be  subject  to  the  most  hurtful  discrimina- 
tion as  to  indispensable  privileges  and  rights.  Besides, 
this  deprivation  would  be  a  badge  of  humiliation  and  de- 
gradation before  the  eyes  of  his  fellows.  He  would  wear 
the  mark  of  Cain.  Such  rights,  under  the  Civil  Eights 
Ar-t,  belong  to  all  freemen. 

is  Peter  v.  Hargrave,  5  Grat.   12. 


118  RlQHTti    AND    PRIVILEGED    UNDER 


Chapter  10. 


PROPERTY.      , 

The  Fourteenth  Amendment  protects  property,  as  well 
as  life  and  liberty,  against  undue  state  action.  Its  impor- 
tance as  the  stay  of  life  and  the  comfort  of  the  liberty  o± 
a  freeman  need  not  be  here  enlarged  upon.  It  is  next 
in  importance  only  to  life  and  liberty.  The  same  general 
principles  above  stated  as  applicable  to  life  and  liberty 
here  also  apply,  and  will  not  be  repeated. 

What  is  Property? — A  definition  is  hardly  necessary. 
Anything  in  which  the  law  allows  ownership  by  man  is 
property  under  this  amendment.  It  may  be  real,  personal 
or  mixed;  it  may  be  corporeal  or  incorporeal;  a  fran- 
chise, contracts,  ready  money,  a  demand  for  money  enforce- 
able by  action,  based  on  contract  or  tort,  in  short,  anything 
capable  of  beneficial  ownership.  It  is  no  matter  what  the 
estate  is,  in  fee  simple,  fee  tail  or  conditional,  for  life, 
years,  at  suffrance  or  will.  Is  it  property  substantial  ? 
That  is  enough.  It  must,  however,  be  vested  property, 
"lawfully  vested,"  recognized  by  law  to  be  protected  un- 
der federal  or  state  constitution.1 

i  N.  Orleans  v.  Water  Company,  142  U.  S.  79 ;  Taylor  v.  Beckharo, 
20  Sup.  Ct.  890,  178  N.  S.  548;'  Essex,  etc.,  Skinkle,  140  U.  S.  334. 


Ttlti    FOURTEENTH     AMENDMENT.  H9 

Reputation  or  Character — Is  this  protected  by  the 
amendment  (  This  is,  according  to  Blackstone,  a  part  of 
"personal  security."  2  The  amendment  protects  life,  lib- 
erty, property,  but  reputation  is  not  named.  Does  it  savor 
of  any  of  the  things  protected  in  letter?  Can  this  great 
attendant  of  the  person  be  considered  as  neglected  by 
Magna  Charta,  whether  found  in  state  or  federal  consti- 
tutions ?  Is  it  a  part  of  life,  or  liberty,  or  property  ?  Like 
them  it  follows  the  person.  Shakespeare  makes  it  savor 
of  life  itself,  for  he  makes  Othello  ask, 

What  dost  thou  mean? 
I  ago  responds: 

Good  name,  in  man  and  woman,  dear  my  lord, 
Is  the  immediate  jewel  of  their  souls. 

Who  steals  my  purse,  steals  trash  ;  'tis  something,  nothing, 
'Twas  mine,  'tis  his,  and  has  been  slave  to  thousands; 
But  he  who  filches  from  me  my  good  name 
Robs  me  of  that  which  not  enriches  him, 
And  makes  me  poor  indeed. 

1  would  not  think  that  reputation  savors  of  life,  so  as  to 
be  protected  as  part  of  life,  though  dear  as  life  itself.     I 
would  make  it  to  savor  of  property,  though  Shakespeare 
does  not  rank  it  with  property,  because  rising  in  sacred- 
ness  above  it,  as  it  does  in  the  eye  of  divine  philosophy, 
in  religion  and  in  the  moral  code.     Whether  it  falls  at 
all  under  the  amendment  is  a  query  under  the  case  of 
Abbot  v.  National  Bank,  decided  in  the  United  States  Su- 
preme Court  December  11,  1800. 

Public  Office. — It  is  not  property.  It  a  mere  trust 
held  by  the  incumbent  for  the  public  benefit,  and  the  exer- 
cise of  governmental  power  in  removal  from  office  does 

2  1  Bl.  Com.  129;   Morton  v.  Nebraska.  21  Wall.  fiflO. 


120  RIGHTS    AND    PRIVILEGES    UNDER 

not  violate  the  Fourteenth  Amendment.  A  very  impor- 
tant case  has  just  been  decided  by  the  United  States  Su- 
preme Court,  Taylor  v.  Beckham.3  Taylor  was  elected 
governor  of  the  state  of  Kentucky  over  Goebel,  and  Mar- 
shall was  elected  lieutenant  governor  over  Beckham,  as 
declared  upon  the  face  of  the  returns  by  the  state  canvass- 
ing board;  but  a  contest  was  instituted  by  Goebel  before 
the  state  legislature  pursuant  to  the  state  constitution,  to 
contest  Taylor's  election,  and  this  contest  resulted  in  a  dec- 
laration by  the  legislature  that  Goebel  had  been  elected 
governor  and  Beckham  lieutenant  governor.  Taylor  hav- 
ing taken  the  oath  of  office  was  exercising  that  office,  and 
Goebel  having  in  the  meantime  died,  Beckham,  having 
taken  the  oath  of  office  as  governor,  he  instituted  in  a 
state  court  an  action  of  quo  warranto,  claiming  that 
Taylor  was  usurping  the  functions  of  governor,  without 
lawful  right,  and  claiming  that  he,  Beckham,  was  the 
lawful  governor,  and  seeking  to  have  Taylor's  title  to 
the  office  adjudicated  to  be  bad.  The  case  went  to  the 
Kentucky  Court  of  Appeals,  and  was  decided  in  Beck- 
ham's  favor,  and  thence  went  to  the  United  States  Su- 
preme Court. 

So  far  as  concerns  this  work,  the  case  involved  the 
question  whether  the  action  of  the  Kentucky  legislature 
and  court  deprived  Taylor  of  office  without  due  process 
of  law  in  violation  of  the  Fourteenth  Amendment.  Both 
the  state  and  the  United  States  Supreme  Courts  held 
against  that  contention,  deciding  that  a  public  office  Is 
not  property,  and  deciding  further  that  tHe  action  of  the 
state  legislature,  under  the  constitution  and  laws  of  Ken- 

3178  U.  S.  548,  20  Sup.  Ct.  899;  Taylor  v.  Beckham  (Ky.),  49 
L.  R.  A.  258. 


77/tf    FOURTEENTH.     AMENDMENT.  121 

tucky,  in  passing  upon  the  contested  case  before  it,  was 
final,  as  a  court  of  sole  and  exclusive  jurisdiction  in  that 
matter  under  state  constitution  and  law,  touching  a  con- 
test for  a  state  office.  The  state  court  used  this  language 
in  its  deliverance  of  judgment:  "The  office  of  governor 
being  created  by  the  constitution  of  this  state,  the  instru- 
ment creating  it  might  properly  provide  how  the  officer 
was  to  be  elected,  and  how  the  result  of  this  election 
should  be  determined.  The  provisions  of  the  Constitu- 
tion on  this  subject  do  not  abridge  the  privileges  or 
immunities  of  the  United  States.  Such  an  office  is  not 
property,  and  in  determining  merely  the  result  of  the 
election,  according  to  its  own  law,  the  state  deprives  no 
one  of  life,  liberty  or  property.  In  creating  this  office 
the  state  had  a  right  to  provide  such  agencies  as  it  saw 
fit  to  determine  the  result  of  the  election,  and  it  had  a 
right  to  provide  such  a  mode  of  procedure  as  it  saw  fit. 
It  is  wholly  a  matter  of  state  policy.  The  people  of  the 
state  might,  by  an  amendment  to  their  constitution,  abol- 
ish the  office  altogether.  The  determination  of  the  re- 
sult of  an  election  is  purely  a  political  question,  and  if 
such  suits  as  this  may  be  maintained,  the  greatest  disor- 
der will  result  in  the  public  business.  It  has  always  been 
the  policy  of  our  law  to  provide  a  summary  process  for 
the  settlement  of  such  contests,  to  the  end  that  public 
business  shall  not  be  interrupted;  but  if  such  a  suit  as 
this  may  be  maintained,  where  will  such  a  contest  end  ?" 
The  Supreme  Court  of  the  United  States,  through 
Chief  Justice  Fuller,  said:  "It  is  obviously  essential 
to  the  independence  of  the  states,  and  to  their  peace  and 
tranquillity,  that  their  power  to  prescribe  the  qualifica- 


122  RIGHTS    AND    PRIVILEGES    UNDER 

tion  of  their  own  officers,  the  tenure  of  their  offices,  the 
manner  of  their  election,  and  the  grounds  on  which,  the 
tribunals  before  which,  and  the  mode  in  which,  such 
elections  may  be  contested,  should  be  exclusive  and  free 
from  external  interference,  except  so  far  as  plainly  pro- 
vided by  the  Constitution  of  the  United  States.  And 
where  controversies  over  the  election  of  state  officers  have 
reached  the  state  courts  in  the  manner  provided  by,  and 
been  there  determined  in  accordance  with,  the  state  con- 
stitutions and  laws,  the  cases  must  necessarily  be  rare  in 
which  the  interference  of  this  court  can  properly  be  in- 
voked." The  Chief  Justice  further  said  that  "The  view 
that  public  office  is  not  property  has  been  generally  en- 
tertained in  this  country,"  citing  cases,  and  went  on  to 
say:  "The  decisions  are  numerous  to  the  effect  that  pub- 
lic officers  are  mere  agencies  or  trusts,  and  not  property 
as  such.  Nor  are  the  salary  and  emoluments  property, 
secured  by  contract,  but  compensation  for  services  ac- 
tually rendered.  Nor  does  the  fact  that  a  constitution 
may  forbid  the  legislature  from  abolishing  a  public  of- 
fice or  diminishing  the  salary  during  the  term  of  the 
incumbent  change  its  character  or  make  it  property. 
True,  the  restrictions  limit  the  power  of  the  legislature 
to  deal  with  the  office,  but  even  such  restrictions  may  be 
removed  by  constitutional  amendment.  In  short,  gen- 
erally speaking,  the  nature  of  the  relation  of  a  public 
officer  to  the  public  is  inconsistent  with  either  a  property 
or  a  contract  right,"  citing  numerous  cases. 

The  above  case  is  another  of  innumerable  instances 
in  the  past  and  to  come  where  the  Fourteenth  Amend- 
ment has  been  and  will  be  claimed  to  be  a  panacea  for 


THE    FOURTEENTH     AUEXDUEM'.  123 

all  imaginable  wrongs  done  by  state  action.  I  can  not  see 
how,  with  any  show  of  plausibility,  so  far  as  a  federal 
question  is  concerned,  it  could  be  claimed  that  the  fed- 
eral government  had  anything  to  do  with  the  decision  of 
an  election  for  governor  of  a  state.  If  the  federal  gov- 
ernment can  thus  interpose  and  decide  who  are  entitled 
as  state  officers  to  administer  its  government,  then  there 
is  not  a  vestige  of  state  sovereignty,  autonomy  or  self- 
government  left  to  the  states.  The  Fourteenth  Amend- 
ment means  no  such  thing.  It  would  be  a  perversion  of 
its  true  intent.  The  United  States  Supreme  Court  has 
in  no  case  lent  countenance  to  such  a  contention. 

IXDEPEXDEXT'E    OF    STATE    GOYERXMEXTS. 

In  the  case  of  Taylor  v.  Beckham,  just  cited,  the  su- 
preme court  lays  down  a  cardinal  principle  of  overrul- 
ing importance,  ever  to  be  observed  as  indispensable  to 
the  independence  of  the  state  governments.  The  court  says 
that  the  guarantee  of  republican  form  of  government  in 
the  federal  Constitution  does  not  give  the  Supreme  Court 
jurisdiction  to  review  action  of  the  highest  court  of  a 
state  sustaining  the  election  of  governor  by  state  legis- 
lation under  the  state  constitution,  on  the  ground  that 
such  decision  denies  the  right  of  the  people  to  choose  their 
own  officers,  where  the  legislative,  executive  and  judicial 
departments  of  the  state  are  peacefully  operating  by  the 
orderly  and  settled  methods  prescribed  by  state  funda- 
mental law,  notwithstanding  there  may  be  difficulty  and 
disturbances  arising  from  the  pendency  of  election  con- 
tests. 


124  RIGHTS    AND    PRIVILEGES    UNDER 

Waste  of  Natural  Gas. — The  common  law  maxim  is, 
Cujus  est  solum,  ejus  est  usque  ad  coelum.  This  gives 
to  the  owner  of  the  soil  everything  beneath  the  surface, 
natural  gas  and  oil  in  place  being  part  of  the  freehold, 
and  thus  belong  to  the  owner  of  the  surface.  That  ow- 
ner may  bore  into  the  surface,  and  the  gas  or  oil  he 
gets,  though  it  may  have  come  from  another  man's  land, 
is  absolutely  his,  without  right  of  reclamation  in  his 
neighbor.  Why,  then,  can  not  the  owner  waste,  as  well 
as  sell  or  give  away,  his  gas  ?  But  this  property  in  these 
fugacious  subjects,  gas  and  oil,  is  not  that  absolute 
property  which  the  owner  has  in  the  fixed  soil.  There 
is  a  difference.  He  owns  under  this  maxim  the  water 
flowing  in  streams  through  his  land,  but  owns  it  only  in 
a  sense.  He  may  use  it  as  he  really  needs  it,  but  can 
not  waste  it  likely,  can  not  deter  it  from  going  to  a  neigh- 
bor for  his  comfort.  The  state  may  prevent  him.  So 
gas  may  be  actually  reduced  to  possession  by  boring 
through  the  surface  by  the  surface  owner;  this  can  not 
be  prevented;  his  right  of  property  in  the  gas  goes  thus 
far.  If  he  does  not  do  this,  he  has  no  shadow  of  right 
to  the  gas  in  another's  land.  We  know  that  gas  and  oil 
are  stored  in  deposits  in  the  earth,  and  that  wells  bored, 
if  they  strike  the  reservoir,  will  bring  up  this  gas  and 
oil.  We  know  too  that  the  gas  is  fugitive,  comes  from  the 
land  of  others  to  the  vents  produced  by  the  wells.  It  be- 
longs not  to  one,  but  to  all,  in  a  sense;  not  so  far  as  to 
prevent  the  owner  of  a  given  farm  from  reducing  it  to 
possession  for  his  reasonable  use,  like  animals  ferae  na- 
turae,, but  so  far  as  to  say  that  such  owner  should  not  be 
allowed  to  wantonly  waste  it  to  the  injury  of  another. 


THE    FOURTEENTH     AMENDMENT.  125 

So  use  your  owu  that  you  do  not  injure  another.  The 
state  can  prevent  your  so  using  your  land  that  you  shall 
not  burn  the  property  of  another  or  take  from  him  light 
and  air.  The  interest  of  adjoining  proprietors  is  such  as 
to  call  for  a  restraint,  just  as  it  would  prevent  the  waste 
of  flowing  water. 

But  there  is  a  stronger  reason  to  warrant  legislation 
found  in  some  of  the  states  against  the  waste  of  natural 
gas,  the  public  interest  in  its  reasonable  preservation  for 
public  consumption.  To  justify  this  state  interference 
natural  gas  has  been  likened  to  animals  ferae  naturae. 
By  common  law  they  belonged  to  no  man.  Though  on 
the  soil  of  an  owner,  he  has  no  more  right  to  them  than 
another.  He  may  prohibit  me  from  coming  upon  his 
land  to  take  them,  but  he  no  more  owns  them  than  I. 
He  may  take  them  for  his  reasonable  use;  so  may  I. 
They  really  belong  to  the  public.  They  have  been  so 
recognized  by  man  from  the  moment  when  God  gave  man 
dominion  over  them,  as  told  in  Genesis.  The  Roman, 
Greek  and  common  law  made  these  animals  separate  from 
the  soil  on  which  they  chanced  to  be  for  the  time.  There 
never  has  been  a  time  when  the  state  did  not  exercise  a 
control,  a  power  of  police  regulation  over  these  animals, 
or  some  of  them,  called  game,  to  save  them  from  rapid 
destruction  for  public  good.  So  with  gas.  The  owner 
may  take  it  for  his  actual  use,  but  the  state  may  prevent 
its  waste,  for  public  weal,  to  prevent  its  exhaustion. 
Over  running  water,  over  wild  animals,  over  gas,  there 
i>  police  power  in  the  state,  based  on  the  same  prin- 
ciple, public  welfare,  only  to  be  exercised  in  different 
modes,  according  to  the  differing  nature  of  the  matter. 


126  RIGHTS    AND    PRIVILEGES    UNDER 

In  Ohio  Coal  Company  v.  Indiana4  Justice  White 
gives  us  a  learned  discussion  of  this  important  subject, 
to  which  I  call  special  attention  for  the  underlying  prin- 
ciples. He  asserts  the  right  of  the  state  to  prevent  such 
waste  on  the  ground  that  it  may  regulate  one  man's  use 
of  his  property  in  order  that  he  may  regulate  one  man's  use 
He  says :  aOn  the  other  hand,  as  to  gas  and  oil,  the  sur- 
face proprietors  within  the  gas  field  all  have  equal  right 
to  reduce  to  possession  the  gas  and  oil  beneath.  They 
could  not  be  absolutely  deprived  of  this  right,  which 
belongs  to  them,  without  a  taking  of  private  property. 
But  there  is  a  coequal  right  in  them  all  to  take  from  a 
common  source  of  supply  the  two  substances,  which  in 
the  nature  of  things  are  united,  though  separate.  It  fol- 
lows from  the  essence  of  their  rights,  and  from  the  sit- 
uation of  the  things  as  to  which  it  can  be  exerted,  that 
the  use  by  one  of  his  power  to  seek  to  convert  a  part  of 
the  common  fund  to  actual  possession  may  result  in  an 
undue  proportion  being  attributed  to  one  of  the  posses- 
sors of  the  right,  to  the  detriment  of  others,  or,  by  the 
waste  by  one  or  more,  to  the  annihilation  of  the  rights 
of  the  remainder.  Hence  it  is  that  the  legislative  power, 
from  the  peculiar  nature  of  the  right  and  the  objects 
upon  which  it  is  to  be  exercised,  can  be  manifested  for  the 
purpose  of  protecting  all  the  collective  owners  by  securing 
a  just  distribution,  to  arise  from  the  enjoyment  by  them 
of  their  privilege  to  reduce  to  possession,  and  to  reach  the 
like  end  by  preventing  waste."  The  case  holds  that  such 

*  177  U.  S.  90.    See  State  v.  Ohio  Oil  Co.,  150  Ind.  21,  47  L.  R.  A. 

627. 


TED    FOURTEENTH     AMENDMENT.  127 

a  statute  does  not  deprive  one  of  property  without  due 
process  of  law  contrary  to  the  Fourteenth  Amendment. 

Game  Preservation. — How  do  you  justify  the  game  laws 
found  in  all  the  states  ?  Are  not  the  deer,  pheasants, 
quail,  turkeys  and  fish  on  my  land  my  property  ?  How  can 
you  prevent  my  taking  or  wantonly  destroying  them  at 
any  season  in  any  way?  Genesis  says  that  God  gave  do- 
minion over  them  to  man.  This  means  a  common  heri- 
tage. They  are  separated  from  the  land;  they  are  not 
appurtenant  to  it.  The  dawn  finds  them  on  my  land; 
the  meridian,  on  yours;  and  the  evening,  on  another's; 
and  I  have  no  right  to  reclaim  them.  Greece,  Rome, 
England  treated  them  as  not  individual  property,  but  as 
belonging  to  the  public.  Man  parcelled  out  earth  into  in- 
dividual, exclusive  ownership;  but  all  authorities  say 
he  did  not  parcel  out  these  fugitive  things  of  wild  nature. 
They  belong  to  the  state  in  trust  for  general  weal,  and 
this  brings  them  under  state  police  power  of  restraint  and 
regulation.5  This  is  fully  sustained  by  the  practice  of 
centuries  in  Europe  and  America.  All  states  have  laws  to 
prevent  the  extinction  of  game.  The  Fourteenth  Amend- 
ment did  not  nullify  this  power.  This  doctrine  is  sus- 
tained in  Geer  v.  Connecticut6  in  an  interesting  opinion 
by  Justice  White.  In  that  case  the  state  act  was  sus- 
tained, though  it  prohibited  at  all  times  the  killing  of 
certain  game  for  transportation  out  of  the  state,  but  did 
not  make  the  mere  killing  of  the  game  unlawful. 

State  Law  as  to  Contracts  and  Property. — Notwithstand- 
ing the  generality  of  the  principles  above  stated  as  to  re- 

s  Lawton  v.  Steel,  152  U.  S.  138;    Stevens  v.  State,  89  Md.  669. 
«  1G1  U.  S.  519.      See  In  re  Eberle,  98  Fed.  295. 


128  RIGHTS    AND    PRIVILEGES    UNDER 

straint  upon  state  action  infringing  the  right  of  contract 
and  acquisition  of  property,  it  is  to  be  remembered  that 
the  states  under  the  police  power,  which  is  not  taken  away 
from  them  by  the  Fourteenth  Amendment,  may  pass 
laws  to  regulate  the  validity  and  formation  of  contracts, 
wills,  conveyances  and  the  acquisition  and  disposal  of 
property.  Such  laws,  prohibiting  certain  contracts,  un- 
less infringing  on  interstate  commerce  or  restrictive  of 
the  federal  government  in  contracting  in  the  performance 
of  its  appointed  functions,  are  not  repugnant  to  the 
amendment.7 

INTEKSTATE   COMMEKCE. 

Speaking  of  the  interstate  commerce  clause,  which  gives 
Congress  power  "to  regulate  commerce  with  foreign  na- 
tions, and  among  the  several  states",  it  is  not  intended  in 
this  work  to  discuss  that  vastly  important  clause,  nor  re- 
fer to  it  except  incidentally  as  it  bears  sometimes  on  mat- 
ters discussed  under  the  Fourteenth  Amendment.  It  may 
be  appropriately  said,  however,  as  it  bears  somewhat  on 
the  amendment,  as  just  suggested,  that  the  commerce 
clause  is  an  affirmative,  positive  grant  by  the  states  to 
Congress  in  the  original  Constitution,  of  absolute  and 
plenary  power  to  legislate  upon  such  commerce  in  all 
things  and  respects  essentially  affecting  it  or  that  may 
affect  it,  unlike  the  Fourteenth  Amendment,  which  is  a 
mere  prohibition  upon  the  states,  not  a  grant  of  original 
jurisdiction.  In  the  case  of  commerce,  Congress  has  power 
of  original  and  exclusive  legislation ;  under  the  Fourteenth 

TBudd  v.  New  York,  143  U.  S.  517;  Hooper  v.  California,  155 
Id.  648;  Opinion  of  Justices  in  163  Mass.  589. 


TUB    FOURTEENTH     AMENDMENT.  129 

Amendment  its  powers  do  not  cover  right  of  primary  leg- 
islation upon  the  subjects  mentioned  in  it,  to  prescribe 
a  full  code  of  enactment  upon  the  multitudinous  matters 
of  privilege,  immunities,  life,  liberty  and  property,  but 
only  such  restrictive  legislation  as  may  veto  undue  leg- 
islation or  action  by  the  states  on  those  subjects.  As  com- 
merce largely  concerns  the  states,  the  federal  decisions 
seem  to  say  that  the  commerce  clause  does  not  wholly  bar 
out  state  legislation  affecting  it  by  virtue  of  the  police 
power,  for  instance;  and  states  may  lawfully  legislate 
thereon  in  so  far  as  the  commerce  affects  them,  but  when 
Congress  passes  an  act  of  regulation  touching  such  com- 
merce, it  excludes  after  conflicting  state  legislation,  and 
supplants  and  nullifies  antecedent  conflictive  state  legisla- 
tion, because  that  which  is  not  supreme  must  yield  to  that 
which  is  supreme.  "The  cases  in  which  legislation  by 
Congress  supersedes  that  of  states  without  specific  provi- 
sion to  that  effect,  are  those  in  which  the  same  matter  is 
the  subject  of  legislation  by  both.8 

Trusts  and  Monopolies. — There  are  innumerable  deci- 
sions of  the  Supreme  Court  upon  this  commerce  clause. 
But  what  has  it  to  do  with  the  Fourteenth  Amend- 
ment ?  That  amendment  does  not  grant,  but  defends 
"liberty"  against  undue  state  action.  It  is  later  than 
the  commerce  clause.  Does  it  guarantee  absolute  lib- 
erty of  contract?  Does  it  repeal  old  law  forbidding 
certain  contracts,  or  forbid  new  law  condemning  such 

8  Gibbons  v.  Ogden,  9  Wheat.  1 ;  In  re  Debs,  158  U.  S.  564 :  Mobile 
v.  Kimball,  102  Id.  691,  697;  Morgan  v.  Louisiana,  118  U.  S.  455, 
465:  Covington  Bridge  Co.  v.  Kentucky,  154  U.  S.  209;  Davis  v. 
Season,  133  U.  S.  333;  Addyston  Pipe  Co.  v.  U.  S.  175  U.  S.  211. 


130  RIGHTS    AND    PRIVILEGES    UNDER 

contracts  as  may  be  considered  hurtful  to  the  public? 
Does  it  defend  trusts,  contracts  made  by  trusts  hurtful 
to  interstate  commerce,  so  that  Congress  can  not  prohibit 
them?  It  certainly  does  not  do  this;  for  the  amend- 
ment does  not  at  all  restrain  Congress —  it  only  restrains 
states;  but  Amendment  Five,  in  the  same  words,  restricts 
the  power  of  the  nation.  In  a  late  case  the  Supreme 
Court  concedes  that  this  word  "liberty"  found  in  both 
amendments  is  not  confined  to  mere  liberty  of  body,  but 
among  others  includes  a  right  to  enter  into  certain  clas- 
ses of  contracts  to  enable  the  citizen  to  carry  on  business ; 
but  it  was  held  that  it  does  not  prevent  Congress  from  pro- 
hibiting contracts  in  the  carrying  on  of  commerce,  which 
directly  and  substantially  regulate  commerce  among  the 
states,  or  agreements  or  combinations  which  directly  oper- 
ate, not  alone  on  manufacture,  but  on  the  sale,  transpor- 
tation and  delivery  of  articles  of  interstate  commerce 
by  preventing  or  restricting  their  sale,  and  tend  to  restrain 
the  manufacture,  purchase,  sale  or  exchange  of  articles 
among  the  states,  and  enhance  the  value  of  such  articles, 
and  that  when  the  effect  of  such  contract  or  combination, 
among  dealers  in  a  commodity  is  enhancement  of  its  price, 
it  restrains  trade  in  it,  even  tho-ugh  contracts  to  buy  it  at 
the  enhanced  price  are  being  made.  The  court  held  that 
the  contracts  violated  the  act  ato  protect  trade  and  com- 
merce against  unlawful  restraints  and  monopolies,"  July 
2,  1890,  Chapter  647.  ("Antitrust  Law.")9  .  .  .  The 
case  cited  holds  that  the  nation  has  no  power  over  com- 
merce done  wholly  within  the  state,  nor  over  monopo- 

»  Addyston  Pipe  Co.  v.  U.  S.,  175  U.  S.  211.  See  also  Addyaton 
Pipe  Co.  v.  U.  S.,  Dec.  1899,  U.  S.  Sup  Court;  Williams  v.  Fears, 
!79  u.  S.  — ,  21  Sup.  Ct.  129. 


THE    FOURTEENTH     AMENDMENT.  131 

lies  or  combinations  injuring  it.  The  states  possess  power 
to  regulate,  protect  and  defend  infra-state  commerce,  and 
can  pass  healthful  legislation  to  prevent  unlawful  combi- 
nations, monopolies  or  trusts  under  its  police  power,  and 
consequently  may,  as  Congress  can  in  inter-state  com- 
merce, condemn  any  contract  which  prejudices  it,  without 
violating  liberty  as  protected  by  the  Fourteenth  Amend- 
ment. Even  if  the  police  power  were  for  the  first  time 
applied  to  forbid  certain  contracts  or  agreements  detri- 
mental to  public  welfare,  it  would  not  violate  the  amend- 
ment because  a  contract  once  not  hurtful  and  lawful,  may, 
in  course  of  time,  become  hurtful,  and  then  be  prohibited. 
But  the  truth  is  this  question  does  not  arise  as  to  laws  to 
protect  the  public  against  monopolies,  agreements  be- 
tween persons  or  corporations  having  effect  to  enhance  the 
price  to  the  public  of  necessary  articles  or  labor,  including 
buying  them  up,  "cornering"  them  and  reselling  them  at 
great  price;  for  centuries  ago  the  common  law  and  old 
statutes  branded  as  indictable  offences  these  things,  call- 
ing them  "forestalling,"  "regrating"  and  "engrossing." 
Forestalling  is  "the  buying  or  contracting  for  any  mer- 
chandise or  victual  coming  in  the  way  to  market ;  or  dis- 
suading persons  from  bringing  their  goods  or  provisions 
there;  or  persuading  them  to  enhance  the  price  of  them 
when  there."  Regrating  is  "the  buying  of  corn  or  other 
dead  victual,  and  selling  it  again  in  the  same  market, 
or  within  four  miles  of  the  place."  Engrossing  is  "the 
getting  into  one's  possession  by  buying  up  of  large  quanti- 
ties of  corn  or  other  dead  victuals  with  intent  to  sell  them 
again.  And  so  the  total  of  engrossing  of  any  other  com- 
modity, with  intent  to  sell  it  at  an  unreasonable  price,  is 


132  RIGHTS    AND    PRIVILEGES    UNDER 

an  offence  indictable  and  finable  at  common  law.10  Mr. 
Bishop  says11  that  these  offences  exist  today  where  the 
common  law  prevails  not  supplanted  by  statute,  and  that 
remedies  against  combinations  exist  under  this  old  law. 
He  says  the  old  offence  of  engrossing,  that  is,  buying  up 
by  monied  men  of  vast  quantities  of  necessaries  and  sell- 
ing at  large  prices  is  an  offence  at  common  law,  and  those 
who  do  so  are  enemies  of  the  race  and  deserve  punishment 
as  thieves  and  robbers.  I  do  not  say  that  all  those  things 
would  now  be  offences,  as  in  the  days  when  necessaries 
were  only  allowed  to  be  sold  in  market  overt;  but  I  do 
say  that  agreements  and  combinations  to  enhance  prices 
of  them,  or  having  that  natural  tendency,  are  offences 
against  the  common  law  above  stated.  Mr.  Bishop  asserts, 
as  I  do,  the  efficiency  of  the  common  law  to  redress  evils 
of  the  present  day  in  hurtful  trust  combinations.  A 
Michigan  decision  so  holds.12  If  the  legislatures  fail  to 
pass  statutes  against  them,  the  common  law  largely  ap- 
plies for  remedy. 

I  refer  to  this  common  law  to  show  that  the  law  from 
ancient   days   condemned   these   combinations,    and   pun- 
ished them  as  public  offences.  It  also  condemned  every  con- 
tract in  restraint  of  trade,  as  agreements  not  to  carry  on 
the  same  business  as  another  at  any  place.     In  44  Eliza- 
beth a  grant  of  a  monopoly  to  make  playing  cards  was 
held  void,  because  a  monopoly  against  common  law  and 
old  acts  of  parliament.    In  1610  James  I.  forbade  anyone 
to  ask  a  monopolistic  grant.13 

10  4  Blackstone's  Com.  158. 

II  New  Or.  L.  §522. 

12  Raymond  v.  Levitt,  46  Mich.  450. 

is  Brewer  v.  Marshall,    19   N.    J.    Eq.    537;    Newburyport  Co.   v. 
City,  103  Fed.  584. 


'I  lit)     FOURTEENTH     AMENDMENT,  133 

A  statute  of  James  declared  all  grants  of  monopolies 
void.14  Therefore,  before  any  of  our  state  constitutions 
or  the  amendment  were  known  this  prohibition  of  the  law 
existed,  and  it  is  utterly  untenable  to  contend  that  any 
statute  passed  to  prevent  such  combinations,  reasonable 
to  the  end,  can  not  be  passed  consistently  with  constitu- 
tional provisions  prohibiting  deprivation  of  liberty  or 
property  without  due  process  of  law.  A  late  case  held  an 
Act  of  Missouri  preventing  pools,  trusts  and  conspiracies 
to  control  prices  not  violative  of  the  Fourteenth  Amend- 
ment as  depriving  of  liberty  of  contract.  Seventy-three 
insurance  companies  combined  to  regulate,  fix  and  control 
the  premium  or  price  of  fire  insurance,  and  their  right 
to  do  business  in  the  state  was  declared  forfeited  for  so 
doing.  The  case  decides  that  the  constitutional  guaranty 
of  life,  liberty  and  property  does  not  include  right  of  in- 
surers to  agree  among  themselves  to  maintain  rates ;  that 
an  insurance  company  can  not  acquire  a  vested  right  by 
complying  with  existing  police  regulations,  which  can  not 
be  affected  by  subsequent  change  of  law.  State  v.  Fire- 
men's Ins.  Co.,  45  L.  R.  A.  363. 

It  is  not  within  the  boundary  of  this  work  to  define 
what  combination  is  one  in  restraint  of  trade,  or  against 
public  policy,  or  what  may  be  legislated  against.  This 
is  largely  within  the  legislative  judgment.  The  subject 
will  be  found  elaborately  discussed  in  cases  cited  in  the 
footnote.15 

i*  7  Bacon's  Abridgmt.  22. 

i-  U.  S.  v.  Addyston,  54  U.  S.App.  723,  85  Fed.  271,  29  C.  C.  A. 
141,  175  U.  S.  211  ;  U.  S.  v.  Trans-Missouri,  106  U.  S.  290;  U.  S.  v. 
Joint-Traffic  Association,  171  U.  S.  558;  Transportation  Co.  v.  Pipe 
Line  Co.,  22  W.  Va.  600.  Full  note,  1  Am.  and  Eng.  Dec.  Eq.  604. 
McMullen  v.  Hoffman,  174  U.  S.  639. 


134  RIGHTS    AND    PRIVILEGES    UNDER 

These  trusts  and  monopolies  have  never  been  favored  in 
law.  There  was  an  agreement  in  1844  between  owners 
of  boats  on  canals  to  regulate  freight  by  uniform  scale 
to  be  fixed  by  a  committee  and  divide  profits  proportionally 
to  boats  used  by  the  trust  parties,  and  binding  members 
not  to  engage  in  the  business  outside  the  association.  Held 
that  the  tendency  was  to  increase  rates  of  freight  and  re- 
press competition,  and  that  the  agreement  was  void.16 

A  trust  combination  was  held  void  in  State  v.  Standard 
Oil  Company.17  The  great  combination  known  as  "The 
Sugar  Trust"  was  held  void,  and  it  was  decided  that  such 
an  unlawful  agreement  would  justify  the  forfeiture  of 
the  charter  of  a  corporation  engaging  in  it.18  The  judg- 
ment in  the  case  was  affirmed  on  the  theory  that  the  com- 
bination was  a  contract  ultra  vires,  and  therefore  unlaw- 
ful, but  the  forfeiture  feature  was  not  insisted  upon.19 
The  act  of  Congress,  2  July,  1890,  "to  protect  trade  and 
commerce  against  unlawful  restraints  and  monopolies," 
is  broad:  "Every  contract,  combination  in  the  form  of 
trust  or  otherwise,  or  conspiracy  in  restraint  of  trade  or 
commerce,  among  the  several  states,  or  with  foreign 
nations,  is  hereby  declared  to  be  illegal." 

I  insert  as  a  sample  the  Xew  York  act: 

CHAPTER  383  OF  THE  LAWS  OF  1897. 

"SECTION  1. — Every  contract,  agreement,  arrangement 
or  combination  whereby  a  monopoly  in  the  manufacture, 

leStanton   v.   Allen,    5   Denio,    434. 

IT  49  Ohio  St.  137. 

is  People  v.  Sugar  Refining  Co.,  54  Hun,  354. 

i»  121  N.  Y.  582. 


THE    FOURTEENTH     AMENDMENT.  135 

production  or  sale  in  this  state  of  any  article  or  commodity 
of  common  use  is  or  may  be  created,  established  or  main- 
tained, or  whereby  competition  in  this  state  in  the  supply 
or  price  of  any  such  article  or  commodity  is  or  may  be 
restrained  or  prevented,  or  whereby  for  the  purpose  of 
creating,  establishing  or  maintaining  a  monopoly  within 
this  state  of  the  manufacture,  production  or  sale  of  any 
such  article  or  commodity,  the  free  pursuit  in  this  state 
of  any  lawful  business,  trade  or  occupation  is  or  may  be 
restricted  or  prevented,  is  hereby  declared  to  be  against 
public  policy,  illegal  and  void. 

"SECTION  2. — Every  person  or  corporation,  or  any  offi- 
cer or  agent  thereof  who  shall  enter  into  any  such  contract 
is  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  shall,  if  a  natural  person,  be  punished  by  a  fine 
not  exceeding  $5,000,  or  by  imprisonment  for  not  longer 
than  one  year,  or  by  both  such  fine  and  imprisonment, 
and,  if  a  corporation,  by  a  fine  not  exceeding  $5,000. 

"SECTION  3. — The  attorney-general  may  bring  an  ac- 
tion in  the  name  and  in  behalf  of  the  people  of  the  state 
against  any  person,  trustee,  director,  manager  or  other 
officer  or  agent  of  a  corporation,  or  against  a  corporation, 
foreign  or  domestic,  to  restrain  and  prevent  the  doing  in 
this  state  of  any  act  herein  declared  to  be  illegal,  or  any 
act  in,  toward  or  for  the  making  or  consummation  of  any 
contract,  agreement,  arrangement  or  combination  herein 
prohibited,  wherever  the  same  may  have  been  made. 

"SECTION  7,  of  the  Stock  Corporation  Law,  which  pro- 
vides :  ^o  stock  corporation  shall  combine  with  any  other 
corporation  or  person  for  the  creation  of  a  monopoly  or 
the  unlawful  restraint  of  trade  or  for  the  prevention  of 
competition  in  any  necessary  of  life.' ' 


136  RIGHTS    AND    PRIVILEGES    UNDER 

Monopoly  Grants. — It  is  aside  from  the  purpose  of  this 
work  to  discuss  this  subject ;  but  it  is  not  improper  to  say, 
in  short,  that  the  legislature  of  a  state,  unless  forbidden 
by  its  constitution,  may  grant  to  persons  or  corporations 
sole  and  exclusive  right  to  carry  on  a  business,  and  such 
grant  is  deemed  a  contract  within  the  meaning  of  that 
clause  of  the  federal  Constitution  prohibiting  a  state  from 
making  or  enforcing  any  law  which  impairs  the  obligation 
of  contracts ;  and  therefore  a  repeal,  or  hurtful  modifica- 
tion, of  such  grant  by  legislative  act  would  be  repugnant 
to  that  provision  of  the  federal  Constitution.  I  think, 
too,  that  where  such  exclusive  grant  exists,  it  would  be 
not  merely  a  contract,  but  a  vested  property  right,  and 
so  any  invasion  of  it  without  due  process  of  law,  by  any 
kind  of  state  action,  would  be  repugnant  to  the  Fourteenth 
Amendment.  A  grant  of  such  exclusive  privilege  by  a 
municipal  corporation  would  be  likewise  a  contract  and 
property,  as  if  granted  by  the  legislature,  provided  that 
the  power  to  make  such  a  grant  is  expressly  vested  in 
the  municipality  by  its  charter  or  state  law;  for  it  has 
no  such  implied  power.20  But  we  must  remark  with 
emphasis  that  such  exclusive  grants  are,  if  not  odious, 
certainly  strongly  disfavored  by  the  law,  and  nothing  but 

20  Dartmouth  College  v.  Woodward,  4  Wheat.  519;  Slaughter 
House  Cases,  16  Wall.  36;  Mason  v.  Bridge  Co,,  17  W.  Va.  396; 
Grand  Rapids  v.  Grand  Rapids,  20  Am.  and  Eng.  Corp.  Cas.  270, 
291 ;  Parkersburg  Gas  Co.  v.  Parkersburg,  30  W.  Va.  435,  4  S.  E.  R. 
650;  Electric  Co.  v.  Traders  Co.,  47  W.  Va.  — ,  35  S.  E.  994;  New 
Orleans  Water  Co.  v.  Rivers,  115  U.  S.  674;  St.  Tammany  Water- 
works v.  N.  O.  Waterworks,  120  U.  S.  64 ;  N.  O.  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  10  Am.  and  Eng.  Corp.  Cas.  639;  Louis- 
ville Gas  Co.  v.  Citizens  Gas  Co.,  115  U.  S.  683,  10  Am.  and  Eng. 
Corp.  Cas.  671;  Detroit  Street  R.  R.  Co.  v.  Railway  Co.,  171  U.  S. 
48. 


THE    FOURTEENTH     AMENDMENT.  137 

express  words  conferring  such  exclusive  privileges  will 
confer  them.  The  presumption  is  always  strong  that  the 
legislature,  or  the  municipal  corporation,  which  is  claimed 
to  have  granted  such  monopoly,  did  not  intend  to  do  so, 
did  not  intend  to  part  with  the  sovereign  right  of  control 
over  such  matters,  did  not  intend  to  part  with  power  so 
essential  to  the  public  good,  and  it  must  be  clear  beyond 
all  question  that  the  act  claimed  to  vest  such  exclusive 
right  does  in  fact  do  so  in  letter.21  A  general  act  forbade 
the  grant  of  a  ferry  within  half  a  mile  of  another.  Held 
that  the  first  grant  was  no  contract  preventing  another.22 

21  Charles  River  Bridge  v.  Warren  Bridge,   11  Pet.  420;   Cooley, 
Const.  Lim.  394;     Syracuse  Water  Co.  v.  City,   116  N.  Y.  167,  29 
Am.  &  Eng.  Corp.  Cas.  307;    Parkersburg  Gas  Co.  v.  Parkersburg, 
30  W.  Va.   435,  4   S.  E.  650;   Wheeling  Bridge  Co.  v.   Bridge  Co. 
34  W.  Va.   155,  138,  U.  S.  287;   Lehigh  Water  Co.  v.  Easton,  121 
U.  S.  391;  Power  v.  Village,  10  Am.  &  Eng.  Corp.  Cas.  54. 

22  Williams  v.  Wingo,  20  Sup.  Ct.  793,  177  U.  S.  601. 


138  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  II. 


DUE   PKOCESS    OF   LAW. 

We  must  note  that  the  federal  and  state  constitutions 
do  not  unconditionally  say  that  no  person  shall  be  de- 
prived of  life,  liberty  or  property  under  any  circum- 
stances. If  they  did,  the  state  and  federal  governments 
would  be  utterly  powerless  to  execute  their  functions; 
bereft  of  sovereign  powers,  there  would  be  no  sanction  to 
protect  life,  liberty  or  property,  or  enforce  any  law.  The 
American  colonies,  when  they  became  free  at  the  close  of 
the  Revolution,  were  free  republics,  sovereignties,  possess- 
ing all  the  powers  of  government  over  their  territory 
which  before  had  been  vested  in  the  British  king  and 
parliament  —  a  power  which  was  omnipotent.1  They 
could,  therefore,  do  anything  with  the  inestimable  rights 
of  life,  liberty  and  property  which  they  might  choose, 
and  could  do  so  now  were  it  not  for  the  restraints  and 
prohibitions  upon  their  power  imposed  by  their  own  and 
the  national  constitutions.  This  omnipotent  power  to  in- 
vade life,  liberty  and  property  is  restrained  by  the  con- 

York  v.  Miller,  11  Peters,  102;  Lansing  v.  Smith,  21  Am. 


D.  89. 


THE     FOURTEENTH     AMENDMENT.  139 

stitutional  provision  that  the  states  shall  not  take  them, 
nor  shall  the  nation,  without  due  process  of  law.  This 
is  the  badge  of  American  freedom.  These  restraints  are, 
as  regards  the  states,  exceptions  from  their  original  in- 
herent, supreme,  sovereign  powers,  rather  than  grants  of 
powers.  With  Henry  VIII  or  Louis  XIV,  or  others  of 
the  many  tyrants  who  have  cursed  the  peoples,  and  who 
are  pilloried  in  history  as  dark  and  sombre  faces  in  the 
galaxy  of  infamy,  it  was  simply  "L'etat  c'est  moi,"  "I  am 
the  State,"  and  life  ended  at  their  mere  personal  mandate ; 
but  with  us,  and  in  England  now,  the  only  king  that  can 
issue  the  death  warrant  is  "Due  process  of  law" — the  voice 
of  the  law  of  the  land,  the  will  of  the  people  spoken  under 
the  majesty  of  law.  It  becomes,  then,  all  the  time,  all 
over  the  Kepublic,  time  and  time  again,  indispensable  to 
ascertain  what  is  this  "due  process  of  law"  which  alone 
makes  the  mighty  warrant  to  justify  government  in  de- 
stroying liberty  or  property,  and  even  life. 

What  is  Due  Process  of  Law? — None  but  general  defini- 
tion is  possible;  but  copious  extracts  from  authority  of 
general  statements  will,  in  almost"  every  case,  solve  the 
question.  Justice  McKenna  said:  "What  it  is  for  a  state 
to  deprive  a  person  of  life,  liberty  or  property  without 
due  process  of  law,  is  not  much  nearer  to  precise  definition 
today  than  it  was  said  to  be  by  Justice  Miller  in  David- 
son v.  New  Orleans,  96  U.  S.  97.  In  that  case  the  court 
suggests  the  difficulty  and  danger  of  attempting  an  author- 
itative definition  of  what  it  is  for  a  state  to  deprive  a  per- 
son of  life,  liberty  or  property  without  due  process  of  law, 
within  the  meaning  of  the  Fourteenth  Amendment,  and 


140  RIGHTS    AXD    PRIVILEGES    UNDER 

holds  that  the  annunciation  of  the  principle  which  governs 
each  case  as  it  arises  is  the  better  mode  of  arriving  at  a 
sound  decision."2  In  the  Davidson  Case  it  is  held  that 
"due  process  of  law"  and  "law  of  the  land"  are  the  same 
in  meaning. 

The  great  constitutional  lawyer  and  statesman,  Daniel 
Webster,  gave  a  general  definition  of  due  process  often 
quoted :  "By  the  law  of  the  land  is  most  clearly  intended 
the  general  law,  which  hears  before  it  condemns;  which 
proceeds  upon  inquiry  and  renders  judgment  only  after 
trial.  The  meaning  is  that  every  citizen  shall  hold  his 
life,  liberty,  property  and  immunities  under  the  protection 
of  general  rules  which  govern  society.  Every  thing  which 
may  pass  under  the  form  of  an  enactment  is  not  law  of  the 
land."3  As  applied  to  matters  of  judicial  nature  this 
definition  and  the  one  given  in  2  Kent's  Commentaries,4 
are  correct.  Kent's  definition  is  as  follows:  "The  better 
and  larger  definition  of  due  process  of  law  is  that  it  means 
law  in  its  regular  course  of  administration  through  the 
courts  of  justice." 

Coke  says  that  "law  of  the  land"  is  that  which  is  ac- 
cording to  "the  old  law  of  the  land ;  that  is,  by  the  due 
course  and  process  of  law."5 

"It  is  sufficient  to  say  that  by  due  process  of  law  is 
meant  one  which,  following  the  forms  of  law,  is  appropri- 
ate to  the  case  and  just  to  the  parties  to  be  affected.  It 
must  be  pursued  in  the  ordinary  mode  prescribed  by  law : 

2  Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557. 
a  Dartmouth  College  Case,  4  Wheat.  581. 
*  2  Kent's  Com.   13. 
6  Coke's  Inst.  46. 


THE    FOURTEENTH     AMENDMENT. 

it  must  be  adapted  to  the  end  to  be  attained,  and  wherever 
it  is  necessary  for  the  protection  of  the  parties,  it  must 
give  them  an  opportunity  to  be  heard  respecting  the  just- 
ness of  the  judgment  sought.  The  clause,  therefore,"^1 
means  that  there  can  be  no  proceeding  against  life,  liberty 
or  property  which  may  result  in  deprivation  of  either, 
without  the  observance  of  those  general  rules  established 
in  our  system  of  jurisprudence  for  the  security  of  pri- 
vate rights."6 

"The  good  sense  of  mankind  has  at  length  settled  down 
to  this:  that  they  (the  words  "due  process  of  law")  were 
intended  to  secure  the  individual  from  the  arbitrary  ex- 
ercise of  the  powers  of  government,  unrestrained  by  the 
established  principles  of  private  right  and  distributive 
justice."7 

Judge  Tucker  said:  "The  meaning  of  these  words  is 
that  no  man  be  deprived  of  his  property  without  being 
heard  in  his  own  defense."8 

"Due  process  of  law  undoubtedly  means  in  the  due 
course  of  legal  proceedings  according  to  the  rules  and 
forms  established  for  the  protection  of  private  right," 
said  Judge  Edwards.9  This  is  an  excellent  short  defi- 
nition. It  requires  only  what  is  demanded  by  the  usual 
general  law  according  to  the  nature  of  the  particular  mat- 
ter in  hand,  but  that  it  does  require,  and  will  not  toler- 
ate unusual  or  arbitrary  action. 

«Hagar  v.  Reclamation  Dist.  Ill  U.  S.  701;  Marchant  v.  Penn. 
R.  R.  Co.  153  U.  S.  387. 

7  Johnson,  J.  in  Columbia  Bank  Okely,  4  Wheat.  235. 
sKinney  v.  Beverly,  1  Hen.  &  Munf.  531. 
»  Weatervelt  v.  Gregg,  12  N.  Y.  209. 


142  RIGHTS    AND    PRIVILEGES    UNDER 

"A  general  public  law  equally  binding  on  all."10 
"Due  process  of  law  is  process  due  according  to  the  law 
of  the  land.  This  process  in  the  states  is  regulated  by 
the  law  of  the  state.  Our  power  over  that  law  is  only 
to  determine  whether  it  is  in  conflict  with  the  supreme 
law  of  the  land — that  is,  with  the  Constitution  or  laws 
of  the  United  States,  or  with  any  treaty."11 
^Justice  Matthews  said:  "Due  process  of  law  in  the 
latter  (fifth)  amendment  refers  to  that  law  of  the  land 
which  derives  its  authority  from  the  legislative  powers 
conferred  on  Congress  by  the  Constitution  of  the  United 
States,  exercised  within  the  limits  therein  prescribed, 
and  interpreted  according  to  the  principles  of  the  common 
law.  In  the  Fourteenth  Amendment,  by  parity  of  reason- 
ing, it  refers  to  that  law  of  the  land,  in  each  state,  which 
derives  its  authority  from  the  inherent  and  reserved  pow- 
ers of  the  state,  exercised  within  the  limits  of  those  fund- 
amental principles  of  liberty  and  justice  which  lie  at  the 
base  of  all  our  civil  and  political  institutions,  and  the 
greatest  security  for  which  resides  in  the  right  of  the 
people  to  make  their  own  laws  and  alter  them  at  their 
pleasure."12 

When  a  party  has  been  fully  heard  in  the  regular  course 
of  judicial  proceedings,  an  erroneous  decision  of  a 
state  court  does  not  deprive  the  unsuccessful  party  of  his 
property  without  due  process  of  law.18 

10  Bank  v.  State,  24  Am.  D.  517,  and  note  537. 
"Walker  v.  Sauvinet,  2  Otto,  90. 
izHurtado  v.  People,  110  U.  S.  516. 

isLaidley  v.  Land  Co.  159  U.  S.  103;  Marchant  v.  Pa.  R.  R.  Co. 
153  Id.  380. 


THE    FOURTEENTH     AMENDMENT.  14$ 

The  very  words  "due  process  of  law"  are  self-explan- 
atory, a  definition  in  themselves.  In  Anderson  v.  Henry14 
the  author  said  in  delivering  the  court's  opinion,  holding 
a  distress  warrant  for  rent  to  be  due  process,  and  consis- 
tent with  the  Fourteenth  Amendment :  "That  amendment 
is  not  the  scarecrow  it  is  often  represented  to  be;  it 
does  not  overthrow  state  laws,  rights  and  remedies  to 
the  extent  and  purposes  for  which  it  is  often  cited.  It 
respects  the  common  law,  the  statute  law,  the  remedies 
and  proceedings  existing  in  the  state  at  its  adoption.  It 
came  to  preserve,  not  to  destroy  existing  rights." 

If  the  proceeding,  whatever  it  be,  is  a  due  proceeding 
according  to  the  established  law,  usual  and  proper  in  the 
particular  matter,  it  is  due  process  and  does  not  violate 
the  amendment.15 

It  will  appear  from  the  above  general  definition  that 
what  was  due  process  long  before  the  amendment  came 
continues  to  be  such.  The  amendment  only  gives  the 
federal  government  power  to  enforce  the  right  of  due 
process.  The  definition  is  the  same  as  before.16 

New  Laws. — It  dees  not  follow  from  what  has  just 
been  said,  that  what  was  due  process  when  the  Fourteenth 
Amendment  was  adopted  remains  such,  that,  therefore, 
such  prior  law  is  the  only  due  process,  and  that  laws  made 
after  its  adoption  are  not  due  process  of  law.  If  that 

"  31  S.  E.  998,  45  W.  Va.  319. 

IB  State  v.  Sponaugle,  43  L.  R.  A.  727,  32  S.  E.  283,  45  W.  Va. 
415:  Munn  v.  Illinois,  94  U.  S.  113;  Lowe  v.  Kansas,  163  U.  S. 
81;  Hallinger  v.  Davis,  146  U.  S.  314;  Hurtado  v.  California, 
110  U.  S.  516;  Dent  v.  West  Va.  129  U.  S.  114;  Fallbrook  T. 
Bradly,  164  U.  S.  112. 

i«Eames  v.   Savage,   52  Am.  R.   751. 


144  RIGHTS    AND    PRIVILEGES    UNDER 

were  so,  it  would  tie  the  Lands  of  the  states  from  all  new 
legislation,  and  bar  the  courts  from  new  procedure  de- 
manded by  changing  conditions  in  process  of  time.  The 
statement  in  State  v.  Sponaugle,  supra,  is  that  "the 
amendment  does  not  define  due  process  of  law.  What  was 
such  before  its  adoption  continues  such.  It  does  not  pro- 
hibit a  state  from  future  new  legislation,  action  or  pro- 
ceeding necessary  in  its  judgment  in  the  administration 
of  its  government,  so  it  bears  alike  on  all  similarly  cir- 
cumstanced, and  be  not  unusual,  oppressive  or  arbitrary 
action,  assailing  the  essential  rights  of  the  person.7717 

"Due  process  implies,  at  least,  conformity  to  natural 
and  inherent  principles  of  justice,  and  forbids  the  taking 
of  private  property  without  compensation,  or  the  condem- 
nation of  anyone  in  person  or  property  without  opportun- 
ity to  be  heard  in  his  own  defense."  .  .  . 
1^  Trial  without  Indictment. — It  is  not  sufficient  to  brand 
•  a  procedure  as  not  due  process  because  never  till  then 
practised.18  This  is  shown  by  several  cases  holding  that 
a  state  constitution  dispensing  with  indictment  for  felony 
and  trying  it  on  information  is  consistent  with  the  demand 
of  due  process.19 

Number  of  Jurors. — This  is  further  shown  by  decisions 
that  a  state  may,  by  its  constitution,  make  a  jury  to  con- 
sist of  less  than  twelve,  without  violating  the  Fourteenth 
Amendment.20 

17  Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct.  383. 

18  Same  case. 

i»Hurtado  v.  California,  110  U.  S.  537;  Maxwell  v.  Dow,  176 
U.  S.  581;  Bolln  v.  Nebraska,  176  U.  S.  83;  Brown  v.  New  Jersey, 
175  U.  S.  176;  Hodson  v.  Vernval,  108  U.  S.  202:  Davis  v.  Burke, 
179  U.  S.  399,  21  Sup.  Ct.  210. 

20  Maxwell  v.  Dow,  176  U.  R.  581:  State  v.  Bates,  14  Utah,  293, 
43  L.  E.  A.  1:  Walker  v.  Sauvinet,  92  U.  S.  90. 


THE     FOURTEENTH     AMENDMENT.  145 

There  can  be  no  question  that  in  both  civil  and  criminal 
cases,  under  Articles  5  and  7  of  amendments  to  the  fed- 
eral Constitution,  and  under  state  constitutions  guaran- 
teeing trial  by  jury,  a  jury  must  consist  of  twelve,  un- 
less a  state  constitution  otherwise  provides.  The  reason 
is  that  a  jury  by  the  common  law  consists  of  twelve,  and 
when  the  constitutions  simply  give  the  jury  right  they 
mean  the  common  law  jury  of  twelve.  Unless  a  state  con- 
stitution does  provide  otherwise,  a  trial  by  a  jury  of  less 
than  twelve  in  cases  such  as  require  a  jury,  would  not 
be  due  process  of  law,  and  the  judgment  would  not  be 

good  under  the  state  constitutions.21 A  rjghj  of -ji^ry 

trial  is  not  a  federal  right  in  a  state  court,  as  Walker  v. 
Sauvinet,  supra,  shows. 

Nature  of  the  Case. — "In  judging  what  is  due  process 
of  law  respect  must  be  had  to  the  cause  and  object  of 
taking,  whether  under  the  taxing  power,  or  the  power  of 
eminent  domain,  or  the  power  of  assessment  for  local 
improvements,  or  none  of  these,  and  if  found  to  be  suit- 
able or  admissible  in  the  special  case,  it  will  be  adjudged 
to  be  due  process ;  but  if  found  to  be  arbitrary,  oppressive 
and  unjust,  it  may  be  declared  to  be  not  due  process  of 
law."22 

A  horse  may  be  seized  or  sold  for  taxes  without  trial; 
but  an  individual  could  not  be  seized  without  process,  or 
condemned  without  trial.  The  two  cases  are  different  in 

21  Capital   Trac.   Co.  v.   Hof,   174  U.   S.   1;    Loving  v.   R.   R.   Co. 
46  W.  Va.,  35  S.  E.  962 ;  Barlow  v.  Daniels,  25  W.  Va.  512 ;  Thomp- 
son v.   Utah,    170   U.    S.    343. 

22  Justice  Bradly  in  Davidson  v.  N.  Orleans,  96  U.  S.  97;  Wul- 
zen  v.  Board,  40  Am.  St.  R.  17. 


14-6  RIGHTS    AND    PRIVILEGES    UNDER 

nature.  Ordinary  administrative  procedure  is  due  pro- 
cess. 

Is  Judicial  Process  Necessary  to  constitute  due  process  ? 
By  no  means  in  every  case.  If  so,  the  wheels  of  govern- 
ment would  stop.  "Due  process  of  law  does  not  always 
require  judicial  hearing.  It  does  in  matters  of  purely 
judicial  nature,  tnit  not  in  matters  of  taxation,  or  in  mat- 
ters purely  administrative."23 

"This  court  has  heretofore  decided  that  due  process  of 
law  does  not  in  all  cases  require  a  resort  to  a  court  of  jus- 
tice to  assert  the  rights  of  the  public  against  an  individual, 
or  to  impose  burdens  on  his  property  for  public  use. 
Hoboken  v.  Land  Co.,  18  How.  272,  and  McMillen  v. 
Anderson,  95  U.  S.  37."24 

Necessarily  many  things  can  be  done  by  state  authority 

without  a  suit.  Even  an  arrest  by  an  officer  in  view  of 
the  commission  of  an  offense  can  lawfully  be  made  with- 
out a  warrant,  because  it  was  authorized  by  common 
law  before  the  amendment,  and  that  does  not  abrogate 
this  function;  even  the  provisions  in  every  constitution 
requiring  for  arrest  a  warrant  upon  cause  shown  do  not 
impair  this  common  law  procedure.25  Decisions  of  offi- 
cers in  first  instance  on  facts  are  due  process.26  . 

"Any  legal  procedure  enforced  by  public  authority, 
whether  sanctioned  by  age  and  custom,  or  newly  devised 
in  the  discretion  of  the  legislature,  in  furtherance  of  the 

23  State  v.  Sponaugle,  45  W.  Va.  415,  32  S.  E.  283,  43  L.  R.  A. 
727. 

-•t  Davidson  v.  N.  Orleans,  96  U.   S.   97. 

25  Cox  v.  Gilmer,  88  Fed.  343;  Miller  v.  Texas,  153  U.  S.  535. 

26  Nhhimura  Ekin  v.  U.  S.  142  U.  S.  651. 


THE     FOL'RTEKXTH     AMENDMENT.  147 

general  public  good,  must  be  held  to  be  due  process  of 
law."  27 

"The  Fourteenth  Amendment  does  not  undertake  to 
control  the  power  of  a  state  to  determine  by  what  process 
legal  rights  may  be  asserted,  or  legal  obligations  be  en- 
forced, provided  the  method  of  procedure  adopted  gives 
reasonable  notice  and  fair  opportunity  to  be  heard  before 
the  issues  are  decided."  28 

"Due  process  is  not  necessarily  judicial.  Administra- 
tive process,  regarded  as  necessary  in  government,  sanc- 
tioned by  long  usage,  is  as  much  due  process  as  any 
other."  29. 

"Undoubtedly  where  life  and  liberty  are  involved  due 
process  requires  that  there  be  a  regular  course  of  judi- 
cial proceeding,  which  implies  that  the  party  shall  have 
notice  and  opportunity  to  be  heard;  so  also  where  title 
or  possession  of  property  is  involved."  30 

Abatement  of  Nuisance. — A  proceeding  in  equity  to  fp 
abate  a  nuisance  without  a  jury  trial  is  due  process,  as 
chancery  always  -exercised  this  jurisdiction.31  A  mu- 
nicipal corporation  may  summarily,  without  suit  or  war- 
rant, remove  a  public  nuisance  by  force,  without  jury 
trial  or  legal  proceeding  other  than  the  order  of  its  coun- 
cil, because  it  was  a  power  wielded  at  common  law  by  an 

27Hurtado  v.  California,  110  U.  S.  537;  In  re  Debs,  158  U.  S.  564. 

28  Iowa  Central  v.  Iowa,  100  U.  S.  389;  L.  &  X.  R.  R.  Co.  v. 
Schmidt,  177  U.  S.  230. 

2»  Attorney  v.  Jochim,  99  Mich.  358,  41  Am.  St.  R.  606. 

soHagar   v.   Reclamation   Dist.    Ill    U.    S.    708. 

si  Kansas  v.  Zeibold,  123  U.  S.  623:  Ellenecker  v.  District,  134 
U.  S.  31;  20  Am.  St.  R.  556;  State  v.  Saunders,  66  X.  H.  39 
(full). 


148  RIGHTS    AND    PRIVILEGES    UNDER 

individual  even,  to  remove  a  public  nuisance — it  was  due 
procedure  by  law  before  the  Fourteenth  Amendment.  If 
actually  necessary,  the  thing  creating  the  nuisance  may 
be  destroyed  or  enjoined.32 

Taxation. — Taxes  can  be  imposed  and  collected  under 
state  law,  and,  though  property  is  seized  and  sold  therefor 
without  suit,  it  is  due  process,  and  does  not  violate  the 
amendment.  In  Witherspoon  v.  Duncan  it  is  held  that 
"the  states,  as  a  general  rule,  have  the  right  of  deter- 
mining the  manner  of  levying  and  collecting  taxes  on 
private  property."  33 

"The  power  to  impose  taxes  is  one  so  unlimited  in 
force,  so  searching  in  extent,  that  the  courts  scarcely 
venture  to  declare  that  it  is  subject  to  any  restrictions 
whatever,  except  such  as  rest  in  the  discretion  of  the  au- 
thority which  exercises  it." 34 

To  the  states  must  be  left  this  vast  power  for  self- 
existence.  "The  basis  of  all  taxation  is  political  neces- 
sity. Without  taxes  there  can  be  no  revenue;  without 
revenue  there  can  be  no  government."  3B 

Justice  Field  said,  in  "State  Tax  on  Foreign-Held 
Bonds":36  "It  may  touch  property  in  every  shape — in 
its  natural  condition,  in  its  manufactured  form,  and  in 
its  varied  transmutations.  ...  It  may  touch  business 

32Lawton  v.  Steel,  152  U.  S.  142;  Hart  v.  Mayor,  24  Am.  D. 
165;  Keeler  Case,  55  Am.  St.  R.  785;  Cook  v.  Harris,  61  N.  Y. 
448;  City  v.  R.  R.  Co.  93  Fed.  119;  Bank  v.  Sarlis,  28  Am.  St. 
R.  185;  Elliott,  Roads  &  S.  486;  2  Wood,  Nuis.,  Sees.  743,  744; 
Burlington  v.  Swartzman,  52  Am.  R.  571. 

334  Wall.  210. 

3*Cooley,  Con.  Lim.  587. 

35  Burroughs  on  Taxation,   1,  3. 

3615  Wall.   319. 


THB    FOURTEENTH     AMENDMENT.  149 

in  the  almost  infinite  forms  in  which  it  is  conducted — 
in  professions,  in  commerce,  in  manufactures,  in  trans- 
portation. Unless  restrained  by  provisions  of  the  fed- 
eral Constitution,  the  power  of  the  state  as  to  the  mode, 
form  and  extent  of  taxation  is  unlimited." 

Such  general  powers  of  taxation  are,  always  were,  in- 
herent in  every  government,  and  when  the  Fourteenth 
Amendment  came  it  found  them  vested  in  the  states,  and 
no  claim  can  plausibly  be  made  that  these  established, 
usual  powers  of  taxation  were  impaired  or  narrowed  by 
that  amendment.  It  does  not  touch  them.  When  Jus- 
tice Field,  as  quoted  above,  spoke  of  limitations  by  the 
federal  Constitution  he  must  have  referred  to  inhibitions 
upon  the  tax  powers  of  the  state  by  other  clauses,  such 
as  imposts  or  duties  on  imports  and  exports,  taxation  of 
government  bonds  and  other  securities,  not  to  any  inhi- 
bition born  of  this  amendment. 

"The  United  States  Constitution  does  not  profess  in 
all  cases  to  protect  against  oppressive  and  unjust  taxa- 
tion by  states."  37 

"This  court  can  afford  a  citizen  of  a  state  no  relief 
from  enforcement  of  her  laws  prescribing  the  mode  and 
subjects  of  taxation,  if  they  neither  trench  upon  federal 
authority  nor  violate  any  right  secured  or  recognized  by 
the  Constitution  of  the  United  States."38 

In  Kelley  v.  Pittsburg39  the  claim  was  that  the  tax 
was  contrary  to  the  Fourteenth  Amendment,  but  the  court 
held  that  "although  differing  from  proceedings  in  courts 

37  Memphis  Gas  Co.  v.  Shelby  County,   109  U.  S.  398. 
ss  Kirtland  v.  Holkiss,  100  U.  S.  491. 
3»  104  U.   S.   78. 


150  RIGHTS    AND    PRIVILEGES    UNDER 

of  justice,  the  general  system  of  procedure  for  the  levy 
and  collection  of  taxes  which  is  established  in  this  country 
is,  within  the  meaning  of  the  Constitution,  due  process 
of  law;  and  that  a  party  is  not  deprived  of  his  property 
without  due  process  of  law  by  the  enforced  collection  of 
taxes  merely  because  they,  in  individual  cases,  work  hard- 
ship or  impose  unequal  burdens." 

In  McMillen  v.  Anderson40  it  is  held  that  the  revenue 
laws  of  a  state  may  be  in  harmony  with  the  Fourteenth 
Amendment,  though  they  do  not  provide  that  a  person 
shall  have  opportunity  to  be  present  when  a  tax  is  as- 
sessed, or  that  it  shall  be  collected  by  suit. 

"Taxes  are  not,  as  a  general  rule,  collected  by  judicial 
proceedings,  and  the  procedure  resorted  to  for  their  im- 
position and  collection  may  be  properly  regarded  as  due 
process  of  law  if  it  conforms  to  customary  usage."  41 

Numerous  cases  hold  this  view.42 

"Process  of  taxation  does  not  require  the  same  kind 
of  notice  as  in  a  suit  at  law  or  proceedings  under  power 
of  eminent  domain.  It  involves  no  violation  of  due  pro- 
cess of  law  when  executed  according  to  customary  forms 
and  established  usage.  .  .  This  must  be  so,  else  the 
existence  of  government  might  be  put  in  peril  by  delays 
attendant  upon  formal  judicial  proceedings  for  collection 
of  taxes."4  2 


U.  S.  37. 
4iWulzen  v.  Board,  40  Am.  St.  R.  1. 

42  Crandall  v.  Nevada,   6   Wall.   35  ;   McCullough  v.  Maryland,  4 
Wheat.  317;   Fallbrook  v.   Bradley,   164  U.  S.   113;   Bank  v.  N.  Y. 
City,  2  Black,   620. 

43  Bells  Gap  R.  R.  Co.  v.  Pennsylvania,   134  U.  S.  232;   Palmer 
v.  McMahon,   133  U.  S.  660. 


THE    FOURTEENTH     AMENDMENT. 

"Of  the  different  kinds  of  taxes  states  may  impose 
there  is  a  vast  number  of  which,  from  their  nature,  no 
notice  can  be  given  the  taxpayer;  nor  would  notice  be 
of  any  advantage  to  him ;  such  as  poll  taxes,  license  taxes 
(not  dependent  on  extent  of  business)  and  generally  spe- 
cific taxes  on  things,  persons  or  occupations.  In  such 
cases  the  legislature,  in  authorizing  the  tax,  fixes  the 
amount,  and  that  is  the  end  of  the  matter.  If  the  tax  is 
not  paid,  property  may  be  sold  and  the  owner  be  thus  de- 
prived of  it.  Yet  there  can  be  no  question  that  the  pro- 
ceeding is  due  process  of  law,  as  there  is  no  inquiry  into 
the  weight  of  evidence  or  other  element  of  judicial  na- 
ture, and  nothing  could  be  changed  by  hearing  the  tax- 
payer. No  right  of  his  is  thereby  invaded.  Thus,  if  the 
tax  on  animals  be  fixed  at  a  sum  per  head,  or  on  articles 
at  so  much  per  yard,  bushel  or  gallon,  there  is  nothing  the 
taxpayer  can  do  to  affect  the  amount  to  be  collected  from 
him.  So  if  a  person  wishes  a  license  to  do  business  of  a 
particular  kind,  or  at  a  particular  place,  such  as  keeping 
hotel  or  restaurant,  or  selling  liquor,  cigars  or  clothes,  he 
has  only  to  pay  the  amount  required  by  law.  There  is  no 
need  in  such  case  for  notice  or  hearing.  So,  also,  if  taxes 
are  imposed  in  the  shape  of  licenses  for  privileges,  such 
as  those  on  foreign  corporations  for  doing  business  in  a 
state,  or  on  domestic  corporations  for  franchise,  the  par- 
ties have  only  to  pay  the  amount.  In  such  cases  there 
is  no  need  for  notice  or  hearing,  as  the  amount  would  not 
be  changed.  But  where  a  tax  is  levied  on  property  not 
specifically,  but  according  to  value,  to  be  ascertained,  by 
assessors,  upon  such  evidence  as  they  may  obtain,  a  dif- 
ferent principle  comes  in.  The  officers  in  estimating 


152  RIGHTS    AND    PRIVILEGES    UNDER 

value  act  judicially ;  and  in  most  of  the  states  provision 
is  made  for  the  correction  of  errors  committed  by  them, 
through  boards  of  revision  or  equalization,  sitting  at  des- 
ignated periods  provided  by  law  to  hear  complaints  re- 
specting the  justice  of  the  assessment.  The  law  in  pre- 
scribing the  time  when  such  complaint  will  be  heard 
gives  all  the  notice  required,  and  the  proceeding  by  which 
the  valuation  is  determined,  though  it  may  be  followed, 
if  the  tax  is  not  paid,  by  a  sale  of  the  delinquent's  prop- 
erty, is  due  process  of  law."  44 

The  failure  to  provide  a  hearing  before  the  governor 
for  revaluation  of  undervalued  property  under  an  act  of 
the  legislature  does  not  make  the  proceeding  void  for  want 
of  due  process,  as  the  governor  only  starts  the  inquiry, 
and  opportunity  for  hearing  is  offered  in  subsequent  pro- 
ceedings. !N"or  is  it  a  denial  of  equal  protection  under 
the  Fourteenth  Amendment ;  and  a  revaluation  of  under- 
valued assessment,  to  make  property  bear  the  burden  it 
would  have  borne  by  a  fair  assessment  in  the  first  in- 
stance, does  not  violate  the  call  for  due  process  on  the 
theory  that  the  first  assessment  was  a  judgment  which 
could  not  be  changed.45 

As  to  hearing  in  proceedings  of  taxation,  there  need  be 
no  judicial  inquiry,  it  being  sufficient  if  an  opportunity 
to  question  the  vadidity  or  amount  of  the  tax,  either  be- 
for  the  amount  of  the  tax  is  determined  or  in  subsequent 
proceedings  for  collection,  is  given.  I  understand  by  this 

**Hager  v.  Reclamation  District,  111  U.  S.  709;  Palmer  v.  Mc- 
Mahon,  133  U.  S.  6G1 ;  Bells  Gap  Co.  v.  Pennsylvania,  134  U.  S. 
233;  Pittsburg  v.  Backus,  154  U.  S.  421;  Kentucky  Railroad  Tax 
Cases,  115  U.  S.  321;  Spencer  v.  Merchant,  125  U.  S.  345. 

45  Weyerhauser  v.  Minnesota,  176  U.  S.  550,  20  Sup.  Ct  R.  485. 


THE     FOURTEENTH     AMENDMENT.  153 

that  if  the  statute  give  any  mode  of  correction  it  is  enough. 
And  as  to  validity,  if  equity  gives  relief,  as  it  does,  though 
the  statute  gives  no  mode  of  correction,  the  assessment  is 
according  to  due  process.46  My  understanding  is  that 
equity  gives  relief  against  unauthorized,  illegal  imposi- 
tion of  taxes;  and  so  the  existence  of  that  remedy  would 
exclude  the  idea  that  the  imposition  of  the  tax  was  with- 
out due  process.  As  shown  by  the  authorities  cited  by 
me  in  State  v.  Sponaugle47  if  there  exists  any  right  to 
contest  a  proceeding  of  taxation  after  its  imposition,  it  is 
enough  to  prevent  the  charge  that  it  is  without  due  pro- 
cess of  law. 

Such  laws  in  a  state  as  have  been  the  accustomed,  ordi- 
nary, usual  laws  for  the  assessment  and  collection  of  taxes 
are  due  process  of  law  under  the  Fourteenth  Amendment. 
The  authorities  cited  in  State  v.  Sponaugle,  last  cited, 
will  show  this.  In  that  case  state  law  forfeiting  land  for 
failure  to  charge  it  on  the  land-tax  books  was  held  not 
repugnant  to  the  Fourteenth  Amendment,  because  such  a 
law  for  the  enforcement  of  taxes  by  forfeiture  of  the  land 
had  been  frequently,  through  many  years,  resorted  to  in 
the  two  Virginias  as  a  means  of  enforcing  the  payment 
of  delinquent  taxes.  This  state  law  was  upheld  as  con- 
sistent with  the  Fourteenth  Amendment  by  the  United 
States  Supreme  Court.48 

An  act  requiring  commissioners  to  assess  for  taxation 
land  before  omitted,  held  not  contrary  to  the  Fourteenth 
Amendment  as  taking  property  without  due  process  of 

46Winona  v.  Minnesota,   159  U.   S.  526. 

47  45  W.  Va.  415,  32  S.  E.  R.  283,  43  L.  R.  A.  727. 

"King  v.  Mullins,  171  U.  S.  404. 


154  RIGHTS    AND    PRIVILEGES    UNDER 

law,  since  the  act  allowed  a  taxpayer  two  years  to  ask 
relief  for  erroneous  assessment.49 

As  will  appear  in  cases  above  cited,  the  Virginia  courts 
held  valid  acts  of  the  legislature  forfeiting  land  for  omis- 
sion to  enter  them  on  the  tax-books,  or  to  pay  taxes  actual- 
ly assessed,  and  also  held  that  such  acts,  ex  proprio  vigore, 
without  any  judicial  proceeding,  forfeited  the  owner's 
title -and  vested  it  in  the  state.  When  those  Virginia  de- 
cisions were  made  the  Virginia  constitution  contained 
this  demand  of  due  process.  This  power  of  taxation  is  so 
great  that  the  Virginia  court  has  held  that  a  man  may  be 
arrested  and  imprisoned  under  a  mere  license  certificate 
of  an  assessor  of  the  revenue  on  failure  to  pay  tax  on 
license  as  a  distiller,  without  a  violation  of  the  Virginia 
Bill  of  Eights  saying  that  no  one  shall  abe  deprived  of  his 
liberty  except  by  the  law  of  the  land  or  the  judgment  of 
his  peers."50 

We  repeat  here  that  due  process  means  the  same  under 
all  the  constitutions,  state  and  federal,  including  the  Four- 
teenth Amendment.  To  show  that  process  usual  for  the 
collection  of  taxes  is  due  process  of  law  I  may  cite  Mur- 
ray v.  Hoboken  Land  Company.51  A  distress  warrant  was 
issued  against  the  property  of  a  defaulting  revenue  col- 
lector, and  under  it  land  was  sold,  and  it  was  claimed  that 
it  deprived  him  of  his  land  without  due  process,  con- 
trary to  Amendment  V.  The  sale  was  held  valid  on  the 
ground  that  the  distress  warrant  was  an  authorized  pro- 
cess for  the  collection  of  revenue.  The  court  said: 

49  Douglas    County  v.  Commonwealth,  34  S.  E.  52 ;  97  Va.  397. 
«>  Commonwealth  v.  Byrne,  20  Grat.  165. 

si  18  Howard,  272.  Also  Fallbrook  Irrigation  Dist.  v.  Bradley, 
164  U.  S.  112. 


THE    FOURTEENTH     AMENDMENT.  155 

"That  the  warrant  now  in  question  is  legal  process,  is 
not  denied.  It  was  issued  in  conformity  with  an  act  of 
Congress.  But  is  it  due  process  of  law?  The  Constitu- 
ution  contains  no  description  of  those  processes,  which  it 
was  intended  to  allow  or  forbid.  It  does  not  even  de- 
clare what  principles  are  intended  to  be  applied  to  ascer- 
tain whether  it  be  due  process.  It  is  manifest  that  it  was 
not  left  to  the  legislative  power  to  enact  any  process  which 
might  be  devised.  The  article  is  a  restraint  on  the  legis- 
lative, as  well  as  on  the  executive  and  judicial,  powers  of 
the  government,  and  can  not  be  so  construed  as  to  leave 
Congress  free  to  make  any  process  due  process  of  law  by 
its  mere  will.  To  what  principles,  then,  are  we  to  re- 
sort to  ascertain  whether  this  process  enacted  by  Congress 
is  due  process  ?  To  this  the  answer  must  be  twofold. 
We  must  examine  the  Constitution  itself  to  see  whether 
this  process  be  in  conflict  with  any  of  its  provisions.  If 
not  found  to  be  so,  we  must  look  to  those  settled  usages 
and  modes  of  proceeding  existing  in  the  common  and 
statute  law  of  England  before  the  emigration  of  our  an- 
cestors, and  which  are  shown  not  to  have  been  unsuited 
to  their  civil  and  political  condition,  by  having  been  acted 
on  by  them  after  the  settlement  of  this  country.  We  ap- 
prehend there  has  been  no  period  since  the  establishment 
of  the  English  monarchy  when  there  has  not  been,  by  the 
law  of  the  land,  a  summary  method  for  the  recovery  of 
debts  due  to  the  crown,  and  especially  those  due  from  re- 
ceivers of  the  revenues.  It  is  difficult  at  this  day  to  trace 
with  precision  all  the  proceedings  had  for  these  purposes 
in  the  earliest  ages  of  the  common  law.  That  they  were 
summary  and  severe,  and  had  been  used  for  purposes  of 


156  RIGHTS    AND    PRIVILEGES    UNDER 

oppression,  is  inferable  from  the  fact  that  one  chapter  of 
Magna  Charta  treats  of  their  restraint.  It  declares,  'We, 
or  our  bailiffs,  shall  not  seize  any  land  or  rent  for  any 
debt  as  long  as  the  present  goods  and  chattels  of  the  debtor 
do  suffice  to  pay  the  debt,  and  the  debtor  himself  be  ready 
to  satisfy  therefor.'  By  the  common  law  the  body,  lands 
and  goods  of  the  king's  debtor  were  liable  to  be  levied 
on  to  obtain  payment.  In  conformity  with  the  above  pro- 
visions of  Magna  Charta,  a  conditional  writ  was  framed 
commanding  the  sheriff  to  enquire  of  the  goods  and  chat- 
tels of  the  debtor,  and  if  they  were  insufficient,  then  to 
extend  on  the  land.  But  it  is  said  that  since  the  Statute 
33,  Hen,  VIII,  C.  39,  the  practice  has  been  to  issue  the 
writ  in  an  absolute  form.  .  .  .  This  brief  sketch  of  the 
modes  of  proceeding  to  ascertain  and  enforce  payment  of 
balances  due  from  receivers  of  the  revenue  in  England 
is  sufficient  to  show  that  the  methods  of  ascertaining  the 
existence  and  amount  of  such  debts,  and  compelling  pay- 
ment, has  varied  widely  from  the  usual  course  of  the 
common  law  on  other  subjects,  and  that  as  respects  such 
debts  due  from  such  officers,  'the  law  of  the  land'  author- 
ized the  employment  of  auditors  and  an  inquisition  with- 
out notice,  and  a  species  of  execution  bearing  close  re- 
semblance to  what  is  termed  a  warrant  of  distress  in  the 
Act  of  1820,  now  in  question.  It  is  certain  that  this  di- 
versity in  the  law  of  the  land  between  public  defaulters 
and  ordinary  debtors  was  understood  in  this  country,  and 
entered  into  the  legislation  of  the  colonies  and  provinces, 
and  more  especially  of  the  states,  after  the  Declaration 
of  Independence  and  before  the  formation  of  the  Con- 
stitution of  the  United  States.  Not  only  was  the  process 


THE    FOURTEENTH     AMENDMENT.  157 

of  distress  in  nearly  or  quite  universal  use  for  the  collec- 
tion of  taxes,  but  what  was  termed  a  warrant  of  distress, 
issuing  against  the  body,  goods  and  chattels  of  default- 
ing receivers  of  public  money,  was  issued  to  some  public 
officer,  to  whom  was  committed  the  power  to  ascertain 
the  amount  of  the  default,  and  by  such  warrant  to  pro- 
ceed to  collect." 

The  court  then  specifies  various  states  in  which  such 
revenue-collecting  procedure  was  resorted  to,  and  adds: 

"This  legislative  construction  of  the  Constitution,  com- 
mencing so  early  in  the  government,  when  the  first  occa- 
sion for  this  manner  of  proceeding  arose,  continued 
throughout  its  existence,  and  repeatedly  acted  on  by  the 
judiciary  and  the  executive,  is  entitled  to  no  inconsider- 
able weight  upon  the  question  whether  the  proceeding 
adopted  by  it  was  due  process  of  law.  .  .  .  Tested  by  the 
common  and  statute  law  of  England  prior  to  the  emigra- 
tion of  our  ancestors,  and  by  the  laws  of  many  of  the 
states  at  the  time  of  the  adoption  of  this  amendment  (Ar- 
ticle V),  the  proceedings  authorized  by  the  Act  of  1820 
can  not  be  denied  to  be  due  process  of  law  when  applied 
to  the  ascertainment  and  recovery  of  balances  due  the 
government  from  a  collector  of  customs,  unless  there  is 
in  the  Constitution  some  other  provision  which  restrains 
Congress  from  authorizing  such  proceedings.  For,  though 
due  process  of  law  generally  implies  and  includes  actor, 
reus,  judex,  regular  allegations,  opportunity  to  answer, 
and  a  trial  according  to  some  settled  course  of  judicial 
proceedings  (2  Inst.  47,  50;  Hoke  v.  Henderson,  4  Dev. 
K  C.  15;  Taylor  v.  Porter,  4  Hill,  140,  146;  Van  Zant 
v.  Waddel,  2  Yerg.  260;  State  Bank  v.  Cooper,  Id.  599; 


158  RIGHTS    &ND    PRIVILEGES    UNDER 

Jones  v.  Perry,  10  Id.  59;  Green  v.  Briggs,  1  Curtis  C. 
C.  R.  311),  yet  this  is  not  universally  true.  There  may 
be,  and  we  have  seen  that  there  are  cases  under  the  law 
of  England  after  Magna  Charta,  and  as  it  was  brought 
to  this  country  and  acted  on  here,  in  which  process,  in 
its  nature  final,  issues  against  the  body,  lands  and  goods 
of  certain  public  debtors  without  any  such  trial." 

This  case  is  largely  commented  upon  in  the  Virginia 
Supreme  Court,  through  President  Moncure,  and  it  is 
there  shown,  by  cases  from  Tennessee,  Kentucky,  Maine, 
Massachusetts,  Georgia,  Missouri  and  other  states,  that 
summary  proceedings,  without  judicial  proceeding  and 
without  notice,  have  always  been  and  are  due  process 
of  law  in  the  assessment  and  collection  of  taxes.52 

A  statute  that  land  purchased  for  taxes  by  the  state, 
if  not  redeemed  within  two  years,  any  person  may  pur- 
chase of  the  state  and  take  deed,  and  that  such  deed  can 
only  be  defeated  by  proof  that  the  taxes  had  been  paid, 
held  not  contrary  to  the  Fourteenth  Amendment,  but  jus- 
tified by  the  taxing  power.53 

But  while  this  power  of  state  taxation  is  thus  large, 
it  is  proper^  to  say,  though  it  is  not  strictly  pertinent  to 
this  work,  that  this  "power  of  a  state  is  limite-'J  to  per- 
sons, property  and  business  within  its  jurisdiction.  All 
taxation  must  relate  to  one  of  these  subjects."  54 

In  the  case  just  cited  it  was  held  that  bonds  of  a  rail- 

52  Commonwealth  v.  Byrne,  20  Grat.  165. 

53  Virginia  Coal  Co.  v.  Thomas,  97  Va.  527,  34  S.  E.  486.     See 
Castillo  v.  McConnico,   168  U.  S.  682;   King  v.  Mullins,   171  U.  S. 
404;   Williams  v.   Supervisors,   122  U.   S.   164;   Multnomah  v.   Sav- 
ings, 169  U.  S.  421. 

54  State  Tax  on  Foreign-Held  Bonds,   15  Wall.   300. 


THB    FOURTEENTH     AMENDMENT.  159 

road  company  held  by  non-residents  of  the  state  of  in- 
corporation could  not  be  taxed  by  it. 

No  State  Taxes  on  United  States  Securities. — A  state  can 
not  tax  bonds,  treasury  notes  or  other  evidences  of  indebt- 
edness of  the  national  government,  or  any  instrumentali- 
ties or  agencies  or  property  necessary  in  the  performance 
of  its  appointed  functions.55  But  it  may  levy  inheritance 
tax  on  them.  It  is  not  a  property  tax.56 

No  State  Tax  on  Federal  Office  or  Salary.57 

No  Federal  Tax  on  Salary  of  State  Officer.58 — Nor  on 
bonds,  or  property  or  agencies  of  a  state  government  or 
municipality.59 

No  State  Tax  on  Exports  or  Imports  to  or  from  foreign 
countries  while  the  goods  are  in  original  cases  ready  for 
export,  or  at  the  close  of  import,  unbroken  or  unsold.60 

No  State  Tax  on  Passengers  or  Freight  Passing  from  State 
to  State,  nor  on  a  railroad  for  them.  This  would  interfere 
with  interestate  commerce,  would  restrict  it  unlawfully, 
in  violation  of  that  clause  of  the  Constitution  giving  Con- 
gress power  to  regulate  interstate  commerce.61 

For  the  same  reason  a  state  can  not  tax  articles  of 
freight  taken  up  without  the  limits  of  a  state  and  carried 
into  it,  or  taken  up  in  the  state  for  carriage  out  of  it.62 

55  Bank  v.  X.  Y.  City  Bank,  2  Black,  620;  Bank  v.  Mayor,  7 
Wall.  10;  Mitchell  v.  Commissioners,  91  U.  S.  206;  Telegraph  Co. 
v.  Texas,  105  U.  S.  460;  Van  Brocklin  v.  Tennessee,  117  U.  S.  151. 

ceplummer  v.  Coler,  178  U.  S.  115;  U.  S.  v.  Perkins,  163  U.  S. 
625. 

57  Dobbins  v.  Erie  Co.   16  Peters,  435. 

58  Collector  v.  Day,    11   Wall.   113. 

59  Ward    v.    Maryland,    12    Wall.    427;    R.    K.    v.    Penniston,    18 
Wall.  5;  Pollock  v.  Farmers'  L.  &  T.  Co.,  157  U.  S.  429. 

«<>Lowe  v.  Austin,  13  Wall.  29;  Brown  v.  Maryland,  12  Wheat. 
419. 

ei  Crandall  v.  Nevada,  6  Wall.  35. 

«2  State  Freight  Tax   Case,   15  Wall.   232. 


150  RIGHTS    AND    PRIVILEGES    UNDER 

Thus  it  appears  that  the  powers  of  each  government, 
federal  and  state,  are  separate  as  to  taxation.  Each  has 
full  power  of  taxation;  but  one  can  not  impair  the  gov- 
ernmental powers  of  the  other  by  taxing  its  property,  se- 
curities, agencies  or  means  essential  for  purposes  of  gov- 
ernment. 

Taxation  must  be  for  Public  Purposes. — It  will  appear 
from  authorities  above  that  the  state  power  of  taxation  is 
very  wide ;  but  wide  as  this  power  is,  still  it  is  not  utterly 
without  limits;  it  can  be  exercised  only  for  pubic  ends.* 
Taxation  for  any  other  purpose  would  take  property  with- 
out due  process  of  law,  contrary  to  the  Fourteenth  Amend- 
ment. "The  general  grant  of  legislative  power  in  the 
constitution  of  a  state  does  not  authorize  the  legislature,  in 
the  exercise  of  either  the  right  of  eminent  domain  or  of 
taxation,  to  take  private  property  without  the  owner's 
consent  for  any  but  a  public  object.  The  legislature  of 
Missouri  has  no  constitutional  power  to  authorize  a  city 
to  issue  bonds  by  way  of  donation  to  a  private  manufac- 
turing corporation."  63 

"There  is  no  such  thing  in  the  theory  of  our  govern- 
ments, state  or  national,  as  unlimited  power.  The  execu- 
tive, the  legislative  and  the  judicial  departments  are 
all  of  limited  and  denned  powers.  There  are  limitations 
of  such  powers  which  arise  out  of  the  essential  nature 
of  all  free  governments,  implied  reservations  of  indi- 
vidual rights,  without  which  the  social  compact  could  not 
exist,  and  which  are  respected  by  all  governments  en- 
titled to  the  name.  Among  these  is  the  limitation  of  the 

es  Cole  v.  La  Grange,  113  U.  S.   1. 


THE     FOURTEENTH     AMENDMENT. 

right  of  taxation,  that  it  can  only  be  used  in  aid  of  a 
public  object,  an  object  within  the  purpose  for  which 
governments  are  established.  It  can  not  be  used  in  aid 
of  a  private  enterprise."64 

The  last  case  cited  holds,  as  many  others  do,  that 
whether  exactions  from  the  people  are  lawful  taxation  is 
ultimately  a  judicial  queston  for  the  courts.  Such  exac- 
tion, not  lawful  taxation,  would  be  a  deprivation  of  prop- 
erty without  due  process,  violative  of  state  constitutions 
and  the  Fourteenth  Amendment.65 

Distress  for  Rent  seizes  and  sells  property  without  jury 
or  trial;  yet  having  been  used  as  a  legal  process  well 
known  to  the  common  law  for  the  collection  of  rent  for 
centuries  before  the  amendment,  it  is  due  process,  and 
not  repugnant  to  that  amendment.66  Generally,  the  law 
allows  a  forthcoming  or  replevin  bond  to  be  given  in 
cases  of  distress  for  rent,  and  defense  thereto  may  be 
made  on  the  ground  of  illegality  or  excess  of  distress,  as 
stated  in  the  case  just  cited,  and  this  constitutes  due  pro- 
cess of  law. 

Death  Sentence  without  Jury. — As  the  state  constitu- 
tions require  the  criminal  fact  to  be  found  by  a  jury,  of 
course  such  sentence,  or  any  sentence  deprivative  of  lib- 
erty, without  a  jury,  would  be  against  the  Fourteenth 
Amendment;  but  where  one  confesses  the  criminal  fact 
in  the  open  court  upon  arraignment,  the  court,  without 
jury,  may  determine  whether  death  or  a  lighter  punish- 
ment shall  be  inflicted  without  violating  the  Fourteenth 

"Loan  Association  v.  Topeka,   20  Wall.   655. 

«5Cooley  on  Taxation,  67:   Sharpless  v.  Mayor,  59  Am.  Dec.  750. 

«B  Anderson  v.  Henry,  45  W.  Va.  319,  31  S.  E.  t)98. 


162  RIGHTS    AND    PRIVILEGES    UNDER 

Amendment,  provided  the  state  law  allows  it.  The  state 
statute  may,  in  such  case,  allow  the  accused  to  elect  to 
be  tried  by  the  court.67 

Punishment  for  Contempt. — Contempt  of  court,  or  of 
a  legislative  body,  may  be  punished  without  a  jury,  and 
is  due  process,  so  far  as  the  Fourteenth  Amendment  goes, 
as  it  was  always  an  established  procedure  used  by  the 
courts  and  legislative  bodies  as  essential  for  the  efficient 
discharge  of  the  functions  belonging  to  them  under  the 
law.  Prompt  action  in  such  cases  is  essential.  Courts 
and  legislative  bodies  must  necessarily  preserve  their  ex- 
istence and  efficacy  of  action  by  prompt  punishment  of 
obstruction  or  resistance  to  their  proceedings.68 

In  the  Eilenbecker  Case  cited  one  was  summarily  pun- 
ished for  selling  liquor  contrary  to  an  injunction  against 
so  doing,  and  it  was  held  that  the  state  might  call  into 
requisition  all  the  powers  of  courts,  chancery  or  law,  to 
suppress  the  manufacture  and  sale  of  liquor. 

Entry  upon  Land  for  Survey  for  railroad  or  private  per- 
son, where  authorized  by  statute,  does  not  violate  the 
Fourteenth  Amendment.  It  would  be  a  trespass  if » done 
without  the  owner's  consent;  but  the  act  of  the  legisla- 
ture allowing  it  takes  from  the  act  the  character  of  tres- 
pass, and  as  it  does  not  take  away  the  owner's  property, 
and  is  no  .  substantial  injury,  and  does  not  substantially 
deprive  him  of  its  use,  it  does  not  violate  the  Constitu- 
tion.69 

«7  Hallinger  v.  Davis,  146  U.  S.  314. 

es  Eilenbecker  v.  Dist.  Court,  134  U.  S.  31 ;  In  re  Debs,  158  U.  S. 
564;  Barclay  v.  Barclay,  184  111.  471;  Kilbourn  v.  Thompson,  103 
U.  S.  168. 

es  Montana   Co.  v.   St.  Louis  Co.   152  U.   S.   160, 


THE    FOURTEENTH     AMENDMENT.  163 

Condemnation  of  Land. — If  property  is  condemned  for 
public  use  without  payment  of,  or  security  for,  compen- 
sation, though  in  a  regular  proceeding  in  court  otherwise 
proper,  it  is  a  taking  of  property  without  due  process 
of  law,  contrary  to  the  Fourteenth  Amendment.70 

Taking  Property  for  mere  Private  Use. — Private  proper- 
ty is  sacred.  It  can  not  be  taken  from  one  man  for  the 
mere  private  use  of  another,  even  with  full  compensation. 
The  purpose  of  its  condemnation  must  be  public,  either  for 
the  use  of  the  state  or  some  of  its  counties  or  municipali- 
ties performing,  in  part,  the  functions  of  a  state,  or  for 
the  use  of  some  corporation  chartered  by  the  state  for 
the  performance  of  functions  deemed  public,  for  transpor- 
tation or  other  public  benefit.  Condemnation  for  such 
public  purposes  must  be  with  compensation.  If  the  con- 
demnation is  for  any  other  than  such  public  purpose, 
and  is  merely  for  the  private  use  or  convenience  of  an- 
other man,  it  is  a  gross  violation  of  the  Fourteenth  Amend- 
ment, as  also  of  the  state  constitutions.  The  state  consti- 
tutions declare  that  private  property  shall  not  be  taken, 
even  for  public  use,  without  compensation,  thus  denying, 
by  the  strongest  implication,  the  right  to  take  it  for  pri- 
vate use  even  with  compensation.71  Hence,  an  act  al- 
lowing taking  of  land  for  a  private  road  is  unconstitu- 
tional.72 

Compensation  for  Land  Condemned  to  public  use  under 
the  power  of  eminent  domain  may  be  fixed,  where  state 

TO  Chicago,  B.  &  Q.  Co.  v.  Chicago,  166  U.  S.  226,  235;  Norwood 
v.  Baker,  172  U.  S.  269. 

71  Missouri  Pacif.  Co.  v.  Nebraska,  164  U.  S.  403. 

72  Varaer  v.  Martin,  21  W.  Va.  534 ;  Holden  v.  Hardy,  169  U.  S. 
366. 


164  RIGHTS    AND    PRIVILEGES    UNDER 

statute  allows,  by  commissioners,  and  due  process  of  law 
under  the  Fourteenth  Amendment  does  not  require  a 
jury.73  State  court  may  one  time  rule  that  compensation 
is  to  be  fixed  by  jury  before  a  sheriff,  and  another  time  by 
jury  before  judge,  yet  this  is  only  a  change  of  procedure, 
not  against  amendment. 

Assessing  Improvements  on  Lot-Owners. — Legislation  al- 
lowing costs  of  paving  and  grading  streets,  making  sew- 
ers, drains  and  the  like  by  towns  to  be  charged  to  lot-own- 
ers, and  making  it  a  lien  on  the  lots,  does  not  take  prop- 
erty without  due  process,  as  it  is  justified  under  the  tax- 
ing power.74 

But  the  cited  cases  hold  notice  of  the  proposed  assess- 
ment to  be  given  the  lot  or  land-owner  necessary,  else  it 
is  without  due  process.  The  case  of  Dewey  v.  Des  Moines, 
cited  in  last  footnote  denies  right  to  make  a  non-resident 
personally  liable  for  such  improvement. 

The  Virginia  case  of  Heth  v.  Radford,75  requires  not 
only  that  notice  shall  be  given,  but  that  such  notice  must 
be  provided  for  in  the  statute,  else  due  process  is  wanting, 
and  renders  the  proceeding  void;  but  it  occurred  to  me 
that  this  was  an  unreasonable  requirement,  and  that  the 
statute  should  be  construed  as  contemplating  notice,  and 
requiring  it,  to  make  the  proceeding  good  under  the  prin- 
73  Bauman  v.  Ross,  167  U.  S.  548;  Backus  v.  Fort  Smith,  169 
U.  S.  557;  Gilmer  v.  Hunnicutt,  35  S.  E.  521. 

74Walston  v.  Nevin,  128  U.  S.  578;  Paulsen  v.  Portland,  149 
U.  S.  30;  Wurtz  v.  Hoagland,  114  U.  S.  606;  Bauman  v.  Ross, 
167  U.  S.  548;  Davidson  v.  N.  Orleans,  96  U.  S.  97;  Spencer  v. 
Merchant,  125  U.  S.  345;  Dewey  v.  Des  Moines,  173  U.  S.  193; 
People  v.  Mayor,  55  Am.  D.  266,  full  discussion  and  note;  Hagar 
v.  Reclamation  Dist.  Ill  U.  S.  701  ;  Leighton  v.  Young,  52  F.  439; 
Loeb  v.  Trustees,  179  U.  S.  472,  21  Sup.  Ct.  174;  King  v.  City,  63 
Pac.  2. 

75  Heth   v.   Radford,   31    S.   E.   8. 


THE    FOURTEENTH     AMENDMENT. 

ciple  prevalent  in  the  construction  of  statutes,  that,  where 
a  statute  authorizes  a  proceeding  operative  to  the  preju- 
dice of  another,  notice  is  intended  and  required  of  the 
proceeding  to  make  it  good;  and  I  find  that  Poulsen  v. 
Portland76  says  that  the  statute  need  not  expressly  pro- 
vide for  notice,  but  that  notice  must  be  given,  though  the 
statute  does  not  in  words  require  it.  So  holds  the  West 
Virginia  court.77 

It  is  held  that  charging  property  with  improvements 
must  have  the  basis  of  actual  benefit  to  the  property,  else 
it  can  not  be  sustained.  The  legislature  can  not  merely 
authorize  such  assessment  without  this  element  of  benefit ; 
and,  indeed,  the  assessment  beyond  actual  benefit  is  un- 
constitutional. I  understand  by  this  excessive  damages 
are  meant.78  Merely  charge  by  frontage  will  not  do.  It 
must  be  by  value  of  improvement. 

Public  Office  not  Vested  Property. — The  Fourteenth 
Amendment  does  not  protect  it.  Removal  from  it  by  such 
procedure  as  the  state  sees  fit  to  adopt  is  due  process  in 
such  case.  Xo  jury  is  required  in  such  cases,  unless  the 
state  statute  provides  for  it.79  A  municipal  corporation 
may  remove  its  officers  at  pleasure,  where  it  has  power  to 
appoint  Town  v.  Filler,  47  W.  Va.— ,  35  S.  E.  6;  Rich- 
ard v.  Clarksburg,  20  Am.  and  Eng.  Corp.  Cases,  111. 

76  149  U.  S.  30. 

77  B.  &  O.  Co.  v.  P.  W.  K.  Co.  17  W.  Va.  813. 

78  Norwood  v.   Baker,    172   U.   S.   269;    Hutchinson   v.    Stovie,   92 
Tex.  685,  71  Am.  St.  R.  884;  Adams  v.  City,  154  Ind.  467.    See  Cass 
Farm  v.  Detroit,  83  N.  W.  108,  contra. 

79  Wilson  v.  North  Carolina,  169  U.  S.  586;  Moore  v.  Strickling, 
46  W.  Va.  515,   33  S.  E.  274;   Atty.  General  v.  Jochim,  99  Mich. 
358,  41  Am.  St.  R.  606;  Ex  parte  Wall,  107  U.  S.  265;  Talioferro 
v.  Lee,  97  Ala.  92;  Taylor  v.  Beckham,  178  U.   S.   548.  20  Sup.  Ct. 
899.     See  Foster  v.  Kansas,  112  U.  S.  201;   Kennard  v.  Louisiana, 
92  U.  S.  480. 


166  RIGHTS    AND    PRIVILEGES    UNDER 

Tax  Deed  as  Evidence. — A  statute  making  a  tax  deed 
conclusive  as  evidence  to  divest  the  former  owner  of  title 
and  vest  it  in  the  tax-purchaser,  or  evidence  of  any  step 
essential  to  pass  title  from  the  owner,  takes  property  from 
that  owner  without  due  process  of  law.  The  statute  may 
make  such  deed  prima  facie,  but  not  conclusive,  evi- 
dence.80 

City  Ordinance  against  Speeches  in  Street  or  park  does 
not  violate  the  amendment,  as  depriving  a  person  of  lib- 
erty without  due  process.  It  is  justified  by  the  police 
power,  which  is  left  with  the  states  by  the  Fourteenth 
Amendment.81 

City  Ordinance  against  Street  Obstruction  is  a  valid  ex- 
ercise of  police  power  consistent  with  the  Fourteenth 
Amendment.  A  building  can  not  be  moved  in  body 
across  a  street,  contrary  to  ordinance.82 

so  Castillo  v.  McConnico,  168  U.  S.  674;  McCready  v.  Sexton, 
29  la.  356,  4  Am.  R.  214;  Dequasie  v.  Harris,  16  W.  Va.  345;  Wil- 
liams v.  Kirtland,  13  Wall.  306;  Cooley,  Taxation,  355. 

si  Davis  v.  Massachusetts,  167  U.  S.  43. 

82  Wilson  v.  Eureka.  173  U.  S.  32. 


TUB     FOURTEENTH     AMENDMENT.  167 


Chapter  J2. 

POLICE  POWEK  OF  STATES. 
Those  great  powers  vested  in  a  state  and  its  subordinate 
agencies,  such  as  counties,  cities,  towns  or  townships, 
called  the  police  power,  under  which  life,  liberty  and 
property  may  be  taken,  existed  from  the  dawn  of  gov- 
ernment, existed  in  the  Colonies  at  the  date  of  the  Dec- 
laration of  Independence,  and  were  always  exercised  by 
the  states,  notwithstanding  clauses  in  their  own  consti- 
tutions declaring  that  no  person  should  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law,  and 
the  exericise  of  such  powers  by  the  states  was  always  held 
to  be  entirely  consistent  with  such  constitutional  pro- 
visions. These  powers  can  not  properly  be  called  excep 
tions  from  the  constitutional  demand  of  due  process  of 
law;  for  they  are,  in  themselves,  due  process,  because 
they  are  proper,  usual,  ordinary  action  pursuant  to  law, 
and  appropriate  in  the  particular  case.  When  the  Four- 
teenthN  Amendment  came,  it  came,  not  to  destroy  rights 
existing  in  the  states ;  it  did  not  undertake  even  to  define 
due  process  of  law.  or  to  declare  or  indicate  what  already 
were,  or  should  thereafter  bo,  legitimate  powers  of  the 
states;  it  used  only  the  common  law  expression,  "due 


1(58  RIGHTS    AND    PRIVILEGES    UNDER 

process  of  law,"  as  a  legal  phrase  of  common  law  im- 
port, as  a  thing  pre-existing.  It  neither  originated,  en- 
larged, nor  narrowed  that  expression  in  its  meaning.  It 
simply  declared  that  no  state  shall  pass  upon  or  affect 
the  life,  liberty  or  property  of  a  person,  except  according 
to  due  process  of  law,  whatever  that  be  in  the  particular 
case  or  instance,  tested  by  the  existing  general  law  appli- 
cable alike  to  all.  Plainly,  then,  this  amendment  does  not 
touch  to  impair  the  lawful  police  power  of  the  states.  It 
does  not  create,  narrow  or  widen/police  power,  but  leaves 
it  as  it  was  before  the  amendment  came.1 

"The  Fourteenth  Amendment  does  not  impair  the  po- 
lice power  of  the  states."  2 

Upon  this  subject  Chief -Justice  Fuller  says:  "The 
power  of  the  state  to  impose  restraints  and  burdens  upon 
persons  and  property  in  conservation  and  promotion  of 
the  public  health,  good  order  and  prosperity,  is  a  power 
originally  and  always  belonging  to  the  states,  not  surren- 
dered by  them  to  the  general  government,  nor  directly 
restrained  by  the  Constitution  of  the  United  States,  and 
essentially  exclusive.  And  this  court  has  uniformly  rec- 
ognized state  legislation,  legitimately  for  police  purposes, 
as  not,  in  the  sense  of  the  Constitution,  necessarily  in- 
fringing upon  any  right  which  has  been  confided  express- 
ly or  by  implication  to  the  national  government.  The 
Fourteenth  Amendment,  in  forbidding  a  state  to  make  or 
enforce  any  law  abridging  the  privileges  and  immunities 
of  citizens  of  the  United  States,  or  to  deprive  any  per- 

1  Barbier  v.   Connolly,    113   U.    S.   27;    Minneapolis   v.    Beckwith, 
129  Id.  26. 

2  Slaughter  House  Cases,  16  Wall.  30. 


FOURTEENTH     AMENDMENT.  169 

son  of  life,  liberty  or  property  without  due  process  of 
law,  or  to  deny  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,  did  not  invest,  and  did  not 
attempt  to  invest,  Congress  with  power  to  legislate  upon 
subjects  which  are  within  the  domain  of  state  legisla- 
tion." 3 

Chief-Justice  Taney,  in  License  Cases,4  said  of  the  po- 
lice powers:  "They  are  nothing  more  or  less  than  pow- 
ers of  government  inherent  in  every  sovereignty.  Wheth- 
er a  state  passes  a  quarantine  law,  or  a  law  to  punish 
offenses,  or  establish  courts,  or  to  record  instruments,  or 
regulate  commerce  within  its  territory,  in  every  such  case 
it  exercises  the  same  power  to  govern  men  and  things." 

Indeed,  this  police  power  is  so  essential  to  state  gov- 
ernment that  it  has  been  held  that  it  is  not  within  the 
power  of  a  state  to  grant  it  away  to  a  corporation,  or 
embargo  itself  from  its  future  exercise,  or  otherwise  re- 
linquish or  bargain  it  away.5  A  state  could  not  be  a 
government,  could  not  give  protection  to  its  people  in  re- 
turn for  their  allegiance  and  taxes  did  it  not  possess  this 
police  power ;  for  upon  it  rests  her  entire  criminal  law,  all 
law  to  protect  life,  limb,  property,  health,  order,  morals 
— all  the  highest  behests  and  wants  of  organized  society. 
The  Supreme  Court  said :  6  "It  is  thoroughly  established 
in  this  court  that  the  inhibitions  of  the  Constitution  of 
the  United  States  upon  impairment  of  contracts  or  dep- 
rivation of  property  without  due  process  of  law,  or  equal 

3  In  re  Rahrer,  140  U.  S.  554. 
*5  How.  583. 

5  Beer  Co.   v.   Massachusetts,   97   U.   S.  25 ;    Stone  v.  Mississippi, 
101  U.  S.  814;  Railroad  Co.  v.  Transportation  Co.  25  W.  Va.  324. 
«N.  Y.  &  N.  E.  R.  R.  Co.  v.  Bristol,  151  U.  S.  567. 


170  RIGHTS    AXD    PRIVILEGED    UXDER 

protection  of  law  by  the  states,  are  not  violated  by  the 
legitimate  exercise  of  legislative  power  in  securing  public 
safety,  health  and  morals.  The  governmental  power  of 
self-protection  can  not  be  contracted  away,  nor  can  the 
exercise  of  rights  granted,  nor  the  use  of  property,  be 
withdrawn  from  the  implied  liability  in  particulars  es- 
sential to  the  preservation  of  the  community  from  in- 
jury," citing  many  cases. 

"The  police  power  is  as  broad  and  plenary  as  the  tax- 
ing power  (as  defined  in  Coe  v.  Errol,  116  U.  S.  517), 
and  property  within  the  state  is  subject  to  the  operation 
of  the  former  so  long  as  it  is  within  the  regulating  re- 
strictions of  the  latter."  7 

"All  rights  are  subject  to  the  police  power  of  a  state; 
and  if  public  safety  or  morals  require  the  discontinuance 
of  any  manufacture  or  traffic,  the  legislature  may  provide 
for  its  discontinuance,  notwithstanding  an  individual  or 
corporation  may  suffer  inconvenience." 8 

"The  settled  rule  of  this  court  is  that  the  mere  fact 
of  pecuniary  injury  does  not  warrant  the  overthrow  of 
legislation  of  a  police  character."  9 

Criminal  Law  Rests  on  Police  Power There  is  no  other 

-  warrant  for  it.  Indeed,  a  large  part  of  the  civil  law,  that 
giving  right  of  action  for  torts  and  contracts,  rests  on 
this  police  power.  "Undoubtedly  the  authority  to  deter- 
mine what  crimes  are  punishable,  and  to  provide  for 
their  punishment,  is  a  part  of  the  general  police  power 
of  a  sovereign  and  independent  state,  and,  not  being  con- 

»Kidd  v.  Peirson,  128  U.   S.  1. 

«  Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 

»L'Hote  v.  New  Orleans,   177  U.  S.  587. 


THE     FOURTEENTH     AMENDMENT.  JJ1 

ferred  by  the  Constitution  of  the  United  States  upon  the 
federal  government,  remains  with  the  separate  states  of 
the  Union."  10 

It  is  impossible  and  dangerous  to  lav  down  an  iron- 
bound,  inflexible  definition  of  the  police  power.  It  is 
elastic,  changing  with  time  and  need.  "How  far  the  po- 
lice power  goes  must  be  left  for  decision  in  each  case  as 
it  arises."11 

Wide  as  is  this  power,  everything  and  anything  done 
under  state  authority  can  not  be  justified  under  it.  The 
act  done  must  fall  within  the  legal  bounds-  of  the  police 
power.  If  it  exceeds  those  bounds,  and  prejudices  life, 
liberty,  property,  equality  before  the  law,  or  privilege 
or  immunity,  it  justifies  federal  intervention  under  the 
Fourteenth  Amendment,  because  it  violates  that  amend- 
ment.12 

"Under  pretense  of  police  regulation  the  state  can  not 
be  permitted  to  encroach  upion  any  of  the  just  rights  of 
the  citizen,  which  the  Constitution  intended  to  secure 
against  abridgement."  13 

Definition  of  Police  Power. — Practically  I  have  above 
given  such  definition.  "Police  power,  in  its  broadest 
acceptation,  means  the  general  power  of  a  government 
to  preserve  and  promote  public  welfare,  even  at  the  ex- 
pense of  private  right."  14 

10  1  McClain's  Crim.  Law,  Sec.  23. 

11  Allgeyer  v.  Louisiana,   165  U.  S.  578. 

^State  v.  Goodwill,  33  W.  Va.  179,  25  Am.  St.  R.  863,  and 
note;  Ruhstratt  v.  People,  185  111.  133;  Frost  v.  Chicago,  178  111. 
250,  49  L.  R.  A.  657 ;  State  v.  Johnson,  61  Kan.  803,  49  L.  R.  A.  662. 

is  Field,  J.,  in  Slaughter  House  Cases,  16  Wall.  87. 

i*  Cooley,  Con.  Lira.  707 ;  Tiedman's  Police  Limitations,  Sec.  1. 


172  RIGHTS    AXD    PRIVILEGES    UNDER 

In  Lawton  v.  Steele15  is  an  opinion  by  Justice  Brown 
which  I  consider  one  of  the  very  best  statements  of  the 
nature  and  extent  of  the  police  power  to  be  found  any- 
where. He  says:  "It  is  universally  conceded  to  include 
everything  essential  to  public  safety,  health  and  morals, 
and  to  justify  destruction  or  abatement  by  summary  pro- 
ceedings of  whatever  may  be  regarded  as  public  nuisances. 
Under  this  power  it  has  been  held  that  the  state  may  or- 
der the  destruction  of  a  house  falling  to  decay  or  other- 
wise endangering  the  lives  of  passers-by;  the  demolition 
of  such  as  are  in  the  path  of  conflagration ;  the  slaughter 
of  diseased  cattle;  the  destruction  of  decayed  or  unwhole- 
some food;  the  prohibition  of  wooden  buildings  in  cities; 
the  regulations  of  railways  and  other  means  of  public 
conveyance,  and  of  interments  in  burial-grounds;  the 
restriction  of  objectionable  trades  to  localities;  the  com- 
pulsory vaccination  of  children;  the  confinement  of  the 
insane  or  those  afflicted  with  contagious  disease;  the  re- 
straint of  vagrants,  beggars  and  habitual  drunkards;  the 
suppression  of  obscene  publications  and  houses  of  ill 
fame;  and  the  prohibition  of  gambling-houses  and  places 
where  intoxicating  liquors  are  sold.  Beyond  this,  how- 
ever, the  state  may  interfere  wherever  the  public  inter- 
ests demand  it,  and  in  this  particular  a  large  discretion 
is  necessarily  vested  in  the  legislature  to  determine,  not 
only  what  the  interests  of  the  public  require,  but  what 
measures  are  necessary  for  the  protection  of  such  inter- 
ests. To  justify  the  state  in  thus  interposing  its  author- 
ity in  behalf  of  the  public  it  must  appear,  first,  that  the 

15152  U.  S.  133. 


TUB    FOURTEENTH     AMENDMENT.  173 

interests  of  the  public  generally,  as  distinguished  from 
those  of  a  particular  class,  require  such  interference; 
and,  second,  that  the  means  are  reasonably  necessary  for 
the  accomplishment  of  the  purpose,  and  not  unduly  op- 
pressive upon  individuals.  The  legislature  may  not,  un- 
der guise  of  protecting  public  interests,  arbitrarily  inter- 
fere with  private  business,  or  impose  unusual  and  un- 
necessary restrictions  upon  lawful  occupations.  In  other 
words,  its  determination  of  what  is  a  proper  exercise  of 
the  police  power  is  not  final  or  conclusive,  but  is  subject 
to  the  supervision  of  the  courts." 

The  police  power  of  a  state  is  the  power  to  prescribe 
laws  and  regulations  for  the  good  order,  peace,  protec- 
tion, safety  of  person,  character  and  property,  comfort, 
convenience,  morals  of  the  community,  and  to  accomplish 
these  ends  it  may  do  anything  not  trenching  on  the  like 
powers  of  the  federal  government.16 

"It  is  the  inherent  and  plenary  power  of  the  state  which 
enables  it  to  prohibit  all  things  hurtful  to  the  comfort 
and  welfare  of  society."  17 

"As  soon  as  any  part  of  a  person's  conduct  affects  preju- 
dicially the  interests  of  others,  society  has  jurisdiction 
over  it."  18 

"It  is  within  the  general  power  of  the  state  to  promote 
the  public  welfare  and  health,  even  at  the  expense  of  pri- 
vate right,  and  this  power  may  be  delegated  to  private 
corporations.  It  rests  solely  with  the  legislative  discre- 

i«N.  O.  Gas  Co.  v.  Hart,  40  La.  Ann.  474,  8  Am.  St.  R.  544,  20 
Am.  &  Eng.  Corp.  Cas.  258;  Western  Union  Co.  v.  Pendleton,  122 
U.  S.  359,  18  Am.  &  Eng.  Corp.  Cas.  18. 

"Hale  v.  Lawrence,  1  Zabriskie,  714,  47  Am.  D.  190. 

"Mills  on   Liberty,  Ch.  4. 


174  RIGHTS    AND    PRIVILEGES    UNDER 

tion,  inside  of  constitutional  limits,  to  determine  when 
public  safety  and  welfare  require  the  exercise  of  the  police 
power.  Courts  can  interfere  only  when  such  exercise 
conflicts  with  the  Constitution ;  with  the  wisdom,  policy 
or  necessity  of  such  exercise  they  have  nothing  to  do."  19 

In  the  case  just  cited,  and  such  is  certainly  law,  it 
is  said  that  a  municipal  corporation  can  not  treat  as  a 
nuisance  a  thing  that  can  not  be  such;  but  when  from 
its  nature  or  surroundings  it  does  or  may  become  such, 
the  corporation  may  so  treat  it;  and  in  doubtful  cases  de- 
pending on  a  variety  of  circumstances,  which  require  the 
exercise  of  discretion,  the  decision  of  municipal  authori- 
ties is  conclusive  and  binding  on  the  courts.  But  the 
action  of  the  municipal  council  declaring  a  thing  a  nui- 
sance is  judicial  in  nature  and  subject  to  review  by  the 
courts.20 

"All  property,  all  business,  every  private  interest  may 
be  affected  by  it  and  brought  within  its  influence.  Under 
it  the  legislature  regulates  the  use  of  property,  prescribes 
rules  of  personal  conduct,  and  in  numberless  ways, 
through  its  pervading  and  ever-present  authority,  su- 
pervises and  controls  the  affairs  of  men  in  their  relation 
to  each  other  and  to  the  community  at  large,  to  secure 
the  mutual  and  equal  rights  of  all,  and  promote  the  in- 
terest of  society.  It  has  limitations;  it  can  not  be  arbi- 
trarily exercised  to  deprive  the  citizen  of  his  liberty  or 
his  property.  But  a  statute  does  not  work  such  a  depriva- 
tion in  the  constitutional  sense  simply  because  it  imposes 

is  Walker  v.  Jameson,  140  Ind.  591,  49  Am.  St.  R.  222. 
20  Town  of  Davis  v.  Davis,  40  W.  Va.  464 ;  Cole  v.  Kegler,  64  la. 
59,  19  N.  W.  843;  Teass  v.  City,  38  W.  Va.  1. 


TUB    FOURTEENTH     AMENDMENT.  175 

burdens  or  abridges  freedom  of  action,  or  regulates  oc- 
cupations, or  subjects  individuals  or  property  to  restraints 
in  matters  in  difference,  except  as  they  affect  public  in- 
terests or  the  rights  of  others.  Legislation  under  the  po- 
lice power  infringes  the  constitutional  guaranty  only  when 
it  is  extended  to  subjects  not  within  its  scope  and  pur- 
view, as  that  power  was  defined  and  understood  when 
the  Constitution  was  adopted.  The  generality  of  terms 
employed  by  jurists  and  publicists  in  defining  the  power, 
while  they  show  its  breadth  and  the  universality  of  its 
presence,  nevertheless  leave  its  boundaries  and  limitations 
indefinite,  and  impose  upon  the  court  the  necessity,  as 
each  case  arises,  to  determine  whether  the  particular  stat- 
ute falls  within  or  outside  of  its  appropriate  limits."  21 

To  the  same  effect  is  State  v.  Moore.22  I  think  the 
above  definition  sound.  It  has  been  criticised23  as  endan- 
gering the  irretrievable  loss  of  the  Fourteenth  Amend- 
ment "in  the  illimitable  or  indescribable  bounds  of  the 
police  power'7;  but  I  am  unable  to  see  how  that  amend- 
ment wrought  the  slightest  change  in  the  police  power 
of  the  state.  It  surely  was  not  designed  to  take  from 
the  states  the  wonted  necessary  powers  of  government  till 
then  inherent  in  their  sovereignty  for  governmental  pur- 
poses. It  created  nothing  new,  defined  nothing;  simply 
required  that  state  action  be  governed  by  due  process 
of  law;  and  acts  legitimately  within  the  police  power 
are  clearly  due  process.  The  sole  question  in  each  case 
i-.  Ts  this  act  one  in  its  nature  and  character  an  act  of 

21  People  v.  Budd,  117  N.  Y.  1,  15  Am.  St.  R.  460. 

22  104  X.  C.  714,  17  Am.  St.  R.  69C. 

23  Note,  25  Am.  St.  R.  883. 


176  RIGHTS    AND    PRIVILEGES    UNDER 

police  \  If  so,  the  Fourteenth  Amendment  does  not  affect 
it.  If  it  does,  the  state  is  virtually  expunged  as  a  govern- 
ment. 

The  case  of  Railroad  Company  v.  Husen24  admits  this 
wide  power  in  the  states,  and  says  that  under  it  "the 
state  may  protect  the  lives,  limbs,  health,  comfort  and 
quiet  of  all  persons  and  their  property,"  according  to  the 
maxim,  sic  utere  tuo  ui  non  alienum  laedas,  which,  be- 
ing of  universal  application,  must  be  within  the  range  of 
legislative  action  to  define  the  mode  and  manner  in  which 
everyone  may  so  use  his  own  as  not  to  injure  others ; 
that  under  the  police  power  persons  and  property  are 
subjected  to  all  kinds  of  restraints  and  burdens,  in  order 
to  secure  the  general  comfort,  health  and  prosperity  of 
the  state ;  of  the  perfect  right  to  do  which  no  question 
ever  was,  or  upon  acknowledged  principles  ever  can  be, 
made,  so  far  as  natural  persons  are  concerned.  It  may 
also  be  admitted  that  the  police  power  of  a  state  justifies 
the  adoption  of  precautionary  measures  against  social 
evils.  Under  it  a  state  may  legislate  to  prevent  the 
spread  of  crime,  pauperism  or  disturbance  of  the  peace. 
It  may  exclude  from  its  limits  convicts,  paupers,  idiots 
and  lunatics  and  persons  likely  to  become  a  public  charge, 
as  well  as  persons  affected  with  contagious  disease,  a  right 
founded,  as  said  in  the  Passenger  Cases,  7  How.  283, 
in  the  sacred  law  of  self-defense.  The  same  principle 
would  justify  the  exclusion  of  animals  having  contagious 
or  infectious  diseases." 

2*  95  U.  S.  465.    See  Austin  v.  Tennessee,  179  U.  S.  343. 


THti    FOURTEENTH     AMENDMENT.  177 

Notwithstanding  all  this,  the  court  held  in  the  case 
just  cited  that  a  statute  prohibiting  Texas,  Mexican  or 
Indian  cattle  from  entering  the  State  of  Missouri  for  a 
period  of  three  years,  except  in  cars  and  boats  not  to  be 
unloaded  in  the  state,  was  void.  On  principles  conceded 
by  the  court  it  is  somewhat  difficult  to  concur  in  this  de- 
cision, except  on  the  ground  that  the  act  was  more  than 
a  quarantine  regulation,  and  was  not  a  legitimate  exer- 
cise of  the  police  power,  as  it  prohibited  entry  of  the  cat- 
tle into  the  state  absolutely,  whether  diseased  or  not, 
without  inspection  to  ascertain  the  fact.  The  case  denies 
absolute  power  in  the  legislature  to  judge  whether  the 
necessity  of  the  police  regulation  exists.  The  case  is 
probably  decided  rightly;  but  it  goes  very  far  to  trench 
upon  the  police  power  of  the  state.  Note,  however,  that 
it  was  not  held  that  the  Missouri  act  was  forbidden  by 
Amendment  Fourteen,  but  that  it  was  contrary  to  the  com- 
merce clause.  The  court  admitted  that  even  that  clause, 
giving  Congress  power,  as  an  affirmative  grant  of  original 
jurisdiction,  to  pass  laws  covering  the  whole  field  of  in- 
terstate commerce,  does  not  forbid  the  exercise  of  police 
power  in  a  proper  case. 

Commerce  Clause — The  power  to  regulate  commerce  be- 
tween the  states  is  conferred  on  the  Congress  by  the  origi- 
nal Constitution,  not  by  the  Fourteenth  Amendment, 
as  the  latter  has  no  relation  to  it.  This  grant  is  not 
merely  prohibitive,  supervisory  or  corrective,  but  is  an 
original  affirmative  grant  of  power,  excluding  power  of 
the  states  on  that  subject;  and  whenever  Congress  makes 
a  regulation  touching  it,  state  regulation  must  yield.  Un- 
til Congress  does  make  a  regulation  the  state  may  enact 


178  RIGHTS    AND    PRIVILEGES    UNDER 

police  laws  touching  interstate  commerce.25  Indeed,  it 
is  not  easy  to  see  why  the  state  may  not  make  what  is  a 
proper  police  regulation,  one  really  within  the  police 
power,  as  to  prevent  contagion,  pestilence  or  any  dire 
public  disaster,  though  it  impair  interstate  commerce,  arid 
this  seems  granted  in  Railroad  v.  Husen;26  still  some  de- 
cisions go  to  the  effect  that  the  powers  of  Congress  are 
here  entirely  paramount,  the  grant  of  power  exclusive, 
and  that  any  regulation,  even  police,  interfering  with 
interstate  commerce  is  void,  not  under  the  Fourteenth 
Amendment,  but  under  Article  1,  Section  8.27 

The  Illinois  court  held  that  an  act  prohibiting  anyone 
from  bringing  into  the  state  or  owning  Texas  or  Chero- 
kee cattle  was  a  valid  exercise  of  the  police  power,  and 
that  as  the  act  was  properly  such,  it  did  not  raise  the 
question  of  constitutionality  under  the  commerce  clause.28 
I  would  think  so.  It  can  not  be  supposed  that  the  states, 
in  adopting  the  Constitution,  gave  up  to  any  extent  this 
function  so  essential  to  their  very  existence  and  health 
and  well-being. 

Police  Power  can  not  be  Granted  Away. — A  strong  argu- 
ment for  the  position  just  stated  is  that  it  seems  settled 
that  a  state  can  not  effectually  grant  or  contract  away, 
or  in  anywise  relinquish,  its  police  power.29  Certainly 

25  Lake  Shore  v.-Ohio,  173  U.  S.  285,  297. 

2605  U.  S.  465.  Full  discussion,  Austin  v.  Tennessee,  179  U.  S. 
343. 

27  Mobile  v.  Kimball,  102  U.  S.  691,  697. 

28Yeazel  v.  Alexander,  58  111.  254. 

29  N.  Y.  Co.  v.  Bristol,  151  U.  S.  567;  Chicago  &  c.  v.  Chicago, 
166  U.  S.  266.  See  also  Beer  Co.  v.  Massachusetts,  97  U.  S.  25; 
Commonwealth  v.  Douglass,  100  Ky.  116,  66  Am.  St.  R.  328;  People 
v.  Squires,  1  Am.  St.  R.  893;  3  Ell.  R.  R.,  Sec.  1082,  N.  5;  New- 
buryport  Co.  v.  City,  103  Fed.  584. 


THE    FOURTEENTH     AMENDMENT.  179 

it  is  there  asserted  that  the  provisions  prohibiting  states 
from  impairing  the  obligation  of  contracts,  and  from  de- 
priving of  life,  liberty  and  property  without  due  process 
of  law  are  subject  to  this  police  power. 

State  Control  of  Property  and  Title. — "The  several  states 
possess  power  to  regulate  tenure  of  real  property  within 
their  respective  limits,  the  modes  of  its  acquisition  and 
transfer,  the  rules  of  descent,  and  the  extent  to  which  a 
testamentary  disposition  of  it  may  be  exercised  by  its 
owner."  30  This  is  under  the  police  power. 

Is  Police  Power  Confined  to  States? — The  general  rule 
is  stated  to  be  that  the  police  power  belongs  to  the  states, 
not  to  the  nation,  except  as  to  the  District  of  Columbia 
and  the  territories.31  Does  this  mean  that  the  nation  has 
no  police  powers  at  all  ?  If  so,  I  doubt  its  correctness. 
When  the  states  granted  the  Union  its  powers,  they  grant- 
ed police  power  to  suit  those  functions.  The  nation  pre- 
scribes penalties  for  offenses  against  the  mails  and  the 
pension  laws,  counterfeiting  national  notes  and  coins,  and 
for  many  other  criminal  and  penal  acts.  I  do  not  see  how 
it  can  be  said  that  as  to  functions  committed  to  its  charge, 
but  not  further,  the  nation  has  no  police  power. 

Act  Making  Railroad  Liable  to  Passengers  for  injuries, 
regardless  of  negligence  on  the  part  of  the  railroad,  or 
passengers,  is  a  valid  exercise  of  police  power,  and  does 
not  violate  the  Fourteenth  Amendment  in  depriving  the 
railroads  of  property  without  due  process  of  law,  and  does 
not  deny  them  the  equal  protection  of  the  laws.32 

30  U.  S.  v.  Fox,  94  U.  S.  315;  Arndt  v.  Griggs,  134  U.  S.  316;  Clarke 
v.  Clarke,  178  U.  S.  186;  Abraham  v.  Casey,  17ft  U.  S.  210. 
si  U.  S.  v.  De  Witt.  9  Wall,  41. 
32  Clark  v.  Russell.   C.  C.   A.  97   Fed.   900. 


130  RIGHTS    AND    PRIVILEGES    UNDER 

Act  Making  Railroad  Liable  for  Fire  from  locomotives 
absolutely  has  been  held  valid,  and  consistent  with  the 
Fourteenth  Amendment,  because  justified  by  the  state's 
police  power.33 

Act  Making  Railroad  Liable  to  Servants  for  negligence  of 
fellow  servants  held  valid  under  the  Fourteenth  Amend- 
ment, and  due  process,  and  does  not  deny  equal  protection 
of  the  law.34 

Act  Compelling  Corporations  to  Pay  Wages  Every  Month 
held  valid  as  due  process,  and  not  a  denial  of  the  equal 
protection  of  the  laws.35 

Act  Requiring  Railroads  to  Pay  Railroad  Commissioners. 
The  South  Carolina  act,  requiring  salaries  and  expenses 
of  a  state  railroad  commission  of  regulation  to  be  borne 
by  the  railroad  companies  has  been  held  to  be  not  in  con- 
flict with  the  Fourteenth  Amendment,  either  as  depriv- 
ing the  corporations  of  property  without  due  process,  or 
denying  them  the  equal  protection  of  the  laws.36  In  the 
first  case  cited  the  court  said  that  the  commission  was 
designed  to  render  railroads  safe  and  efficient  as  common 
carriers,  to  protect  life,  to  redress  evils  committed  by  cor- 
porations holding  special  franchises  from  the  state  and 
performing,  not  merely  private  functions  and  business, 
but  public  functions  and  business  in  touch  with  public 
interest,  thus  bringing  them  under  the  state  power  of 

33  Railway  Co.  v.  Mathews,  165  U.  S.  1;  same  v.  same,  174 
U.  S.  96. 

s*  Railroad  v.  Mackey,  127  U.  S.  205;  Tullis  v.  Lake  Erie,  175 
U.  S.  348,  20  Sup.  Ct.  R.  136. 

ss  Skinner  v.  Garrett,  96  Fed.  735. 

36  Charlotte,  etc.,  Co.  v.  Gibbes,  142  U.  S.  386;  People  y.  Budd, 
145  U.  S.  175. 


THU     FOURTEENTH     AMENDMENT.  181 

police  regulation  pro  bono  publico;  so  that  it  could  not 
be  charged  that  there  was  a  deprivation  of  property  with- 
out due  process;  and  that,  as  the  act  applied  to  all  rail- 
roads alike,  it  did  not  deprive  them  of  equal  protection 
of  the  law. 

Railroad  Rates. — Can  a  State  Regulate  Charges  by  rail- 
roads and  other  agencies  of  public  business  consistently 
with  the  Fourteenth  Amendment  ?  To  make  such  regula- 
tions is  clearly  in  nature  an  act  of  police.  Even  where 
charters  have  impaired  this  power  of  police  in  the  state, 
as  by  licensing  a  lottery  for  a  consideration  paid  for  its 
incorporation,  and  the  grant  of  its  privileges,  it  has  been 
held  that  "all  agree  that  the  legislature  can  not  bargain 
away  the  police  power  of  the  state.  Irrevocable  grants  of 
property  and  franchises  may  be  made,  if  they  do  not  im- 
pair the  supreme  authority  to  make  laws  for  the  right 
government  of  the  state ;  but  no  legislature  can  curtail  the 
power  of  it  successors  to  make  such  laws  as  they  may 
deem  proper  in  matters  of  police."  It  was  held  that  the 
state  could  annul  the  charter  of  the  lottery.37 

There  is  a  great  difference,  under  the  head  now  being 
considered,  between  a  private  individual  or  a  private 
corporation  using  his  property  in  carrying  on  a  purely 
private  business,  and  a  person  or  corporation  carrying 
on  a  public  business,  that  is,  one  concerning  and  affecting 
the  public.  The  powers  of  police  are  in  the  latter  case 
much  wider  than  in  the  former  case.  This  police  power  in 
government  to  regulate  and  control  in  charges  and  other 

37  Stone  v.  Mississippi,  101  U.  S.  814;  Douglass  v.  Kentucky, 
168  U.  S.  488;  Commonwealth  v.  Douglass,  100  Ky.  29,  66  Am. 
St.  R.  324,  n.  p.  333;  Newburyport  Co.  v.  City,  103  Fed.  584;  Lake 
*.  &  M.  S.  Ry.  Co.  v.  Smith,  173  U.  S.  684. 


132  RIGHTS    AND    PRIVILEGES    UNDER 

respects  in  the  latter  case  is  very  ancient,  born  of  old  com- 
mon law,  brought  over  the  Atlantic  by  our  forefathers, 
and  fully  established  and  inherent  in  the  states  prior  to 
the  Fourteenth  Amendment.  Lord  Hale,  more  than  two 
hundred  years  ago,  said  that  when  private  property  was 
"affected  with  a  public  interest,  it  ceases  to  be  juris  pri- 
vati  only."  See  his  treatise,  De  Portibus  Marls,  1  Ear- 
grave's  Law  Tracts,  78.  In  his  treatise,  De  Jure  Marls,  1 
Hargrave's  Law  Tracts,  6,  Lord  Hale  said :  "He  [a  pri- 
vate person]  may  make  a  ferry  for  his  own  use,  but  not 
for  the  common  use  of  all  the  king's  subjects  pass- 
ing that  way;  because  it  doth  in  consequence  tend 
to  a  common  charge,  and  it  becomes  a  thing  of 
public  interest  and  use,  and  every  man  for  his  pas- 
sage pays  a  toll,  which  is  a  common  charge,  and  every 
ferry  ought  to  be  under  a  public  regulation,  viz.,  that  it 
give  attendance  at  due  times,  keep  a  boat  in  good  order, 
and  make  but  reasonable  toll,  for  if  he  fail  in  these  he  is 
finable."  In  De  Portibus  Marls,  1  Hargrave's  Law 
Tracts,  78,  Lord  Hale  further  says:  "A  man,  for  his 
own  private  advantage,  may,  in  a  port  or  town,  set  up  a 
wharf  or  crane,  and  take  what  rates  he  and  his  customers 
can  agree  for  cranage,  wharfage,  houselage,  peasage;  for 
he  doth  no  more  than  is  lawful  for  any  man  to  do,  viz., 
makes  the  most  of  his  own.  ...  If  the  subject  have  a 
public  wharf  into  which  all  persons  who  come  to  that 
port  must  come  and  unload,  or  load  their  goods,  because 
there  is  no  other  wharf  in  that  port ;  in  that  case  there  can 
not  be  taken  arbitrary  and  excessive  duties  for  cranage, 
wharfage,  peasage,  etc.,  neither  can  they  be  enhanced  to 
an  immoderate  rate;  but  the  duties  must  be  reasonable 


THE    FOURTEENTH     AMENDMENT. 

and  moderate,  though  settled  by  the  king's  license  or  char- 
ter. For  now  the  wharf  and  crane  and  other  conveniences 
are  affected  with  a  public  interest,  and  they  cease  to  be 
juris  privati  only;  as  if  a  man  set  out  a  street  near  a 
building  on  his  own  land,  it  is  no  longer  bare  private 
interest."  This  old  law  makes  the  true  test  on  which 
modern  decisions  proceed.  Is  the  business  one  purely  pri- 
vate, or  is  it  in  touch  with  the  public  weal  and  interest? 
This  doctrine  was  approved  by  Lord  Kenyon.38 

Lord  Ellinborough  held  the  same.39 

These  principles  have  been  followed  in  America,  The 
Alabama  court40  was  called  upon  to  say  whether  a  power 
granted  the  city  of  Mobile  to  regulate  the  weight  and  price 
of  bread  was  valid,  and  it  was  contended  that  it  interfered 
with  the  right  of  the  citizen  to  follow  his  lawful  trade  in 
the  mode  his  judgment  might  dictate ;  but  the  court  said : 
"There  is  no  motive  .  .  .  for  this  interference  on  the  part 
of  the  legislature  with  the  lawful  action  of  individuals, 
or  the  mode  in  which  private  property  should  be  enjoyed, 
unless  such  calling  affects  the  public  interest,  or  private 
property  is  employed  in  a  manner  which  directly  affects 
the  body  of  the  people.  Upon  this  principle,  in  this 
state,  tavern-keepers  are  licensed  .  .  .  and  the  county 
court  is  required  at  least  once  a  year  to  settle  the  rates 
of  inn-keepers.  Upon  the  same  principle  is  founded 
the  control  which  the  legislature  has  always  exercised 
in  the  establishment  and  regulation  of  mills,  ferries,  turn- 
pikes, roads  and  other  kindred  subjects." 

ss  Bolt  v.  Stennett,  8  L.  R.  606. 

3»12  East,  537. 

*o  Mobile  v.  Yuelle,  3  Ala.  N.  S.  140.  See  Inter-Ocean  Pub.  Co.  T. 
Asso.  Press,  184  111.  438,  48  L.  R.  A.  568;  People  v.  W.  U.  Tel.  Co. 
166  111.  15,  36  L.  R.  A.  637,  46  N.  E.  731. 


134  RIGHTS    AND    PRIVILEGES    UNDER 

On  principles  stated  in  several  places  in  this  work  the 
Fourteenth  Amendment  did  not  come  to  destroy  the  ex- 
isting fabric  of  government,  or  to  innovate  upon  and 
derange  it,  but  to  defend  rights  existing  according  to  the 
established  order  of  things,  and  did  not  abrogate  this 
healthful  power  of  the  state  to  fairly  and  reasonably, 
for  the  public  good,  prevent  extortion  and  abuse  of  fran- 
chise, and  to  supervise  and  control  persons  or  corpo- 
rations carrying  on  business  deeply  concerning  the  pub- 
lic, or  business  done  under  public  grant  of  license,  per- 
mit or  corporate  franchise  intimately  and.  widely  affect- 
ing public  weal. 

In  Railroad  v.  Transportation  Company41  this  grave 
subject  is  fully  discussed  with  signal  ability  and  research 
by  the  great  Judge  Green,  and  the  court  held  that  railroad 
companies  are  common  carriers  in  public  business  affect- 
ing public  interests,  and  subject  to  legislative  control  as 
to  rates  of  fare  and  freight,  just  as  a  natural  person  who 
is  a  common  carrier  is ;  that  the  company  devotes  its  prop- 
erty to  public  use,  and  thus  grants  the  public  an  interest 
in  that  property,  we  may  say,  and  to  the  extent  such  in- 
terest goes,  the  company  must  submit  to  public  control 
for  the  public  good;  that  there  is  a  marked  difference  be- 
tween such  corporations  and  purely  private  corporations. 
The  former  may  be  called  quasi-public  corporations,  and 
the  legislature  has  over  their  employment  of  property,  so 
devoted  to  a  use  in  which  the  public  has  an  interest,  a 
control  which  it  would  not  have  over  the  employment  of 
property  of  a  purely  private  corporation. 

"25  W.  Va.   324. 


THE    FOURTEENTH     AMENDMENT.  185 

The  legislature  can  generally  exercise  no  control  for- 
bidden by  the  charter  of  a  purely  private  corporation. 
Though  a  railroad  corporation  is  by  a  charter  given 
"power  to  contract  in  reference  to  its  business  as  private 
individuals,"  or  to  demand  such  rates  for  transportation 
and  storage  as  it  deems  reasonable,  or,  though  its  char- 
ter fixes  rates  for  it,  and  declares  that  they  shall  not  be 
reduced  by  the  legislature,  and  though  no  right  to  re- 
peal or  alter  the  charter  be  reserved  in  the  act  grant- 
ing the  charter,  still  the  legislature  has  right  subsequently 
to  establish,  "by  general  act,"  maximum  rates  and  make 
it  applicable  to  railroads  already  operating  under  pre- 
vious charter. 

The  said  case  further  holds  that  "irrevocable  grants  of 
franchises  to  corporations,  which  impair  the  supreme  au- 
thority of  the  state  to  make  laws  for  the  right  government 
of  the  state,  must  be  regarded  as  mere  licenses,  not  con- 
tracts which  bind  future  legislatures;  for  no  legislature 
can  sell  or  give  away  the  discretion  of  subsequent  leg- 
islatures in  respect  to  matters  the  government  of  which 
must,  from  the  very  nature  of  things,  vary  in  varying  cir- 
cumstances." The  case  declares  very  broadly  the  in- 
herent power  of  the  legislature  on  the  subject.  I  can 
safely  refer  to  that  opinion  as  a  lucid  and  sound  analysis 
of  the  subject,  discussing  its  various  phases.  That  case 
largely  followed  the  leading  case  of  Munn  v.  Illinois42 
and  the  several  cases  called  "The  Granger  Cases".43  In 
the  Munn  Case  the  holding  is: 

«94  U.  S.    (4  Otto)    113. 

"Chicago  v.  Iowa,  and  Peik  v.  Chicago  Co.  94  U.  S.    (4  Otto.) 
155  to  187. 


186  RIGHTS    AND    PRIVILEGES    UNDER 

''Under  the  powers  inherent  in  every  sovereignty,  a 
government  may  regulate  the  conduct  of  its  citizens  to- 
ward each  other,  and,  when  necessary  for  the  public  good, 
the  manner  in  which  each  shall  use  his  own  property.  In 
the  exercise  of  these  powers  it  has  been  customary  in  Eng- 
land from  time  immemorial,  and  in  this  country  from  its 
colonization,  to  regulate  ferries,  common  carriers,  hack- 
men,  bakers,  millers,  wharfingers,  inn-keepers,  etc.,  and 
in  so  doing  to  fix  a  maximum  of  charges  to  be  made  for 
services  rendered,  accommodations  furnished  and  articles 
sold.  Down  to  the  time  of  the  adoption  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States  it 
was  not  supposed  that  statutes  regulating  the  use,  or  even 
the  price  of  the  use,  of  private  property  necessarily  de- 
prived the  owner  of  his  property  without  due  process  of 
law.  Under  some  circumstances  they  may,  but  not  all. 
The  amendment  does  not  change  the  law  in  this  particu- 
lar. It  simply  prevents  the  state  from  doing  that  which 
will  operate  as  such  deprivation.  When  an  owner  of  prop- 
erty devotes  it  to  a  use  in  which  the  public  has  an  in- 
terest, he  in  effect  grants  to  the  public  an  interest  in 
such  use,  and  must,  to  fhe  extent  of  that  interest, 
submit  to  be  controlled  by  the  public,  for  the  common 
good,  as  long  as  he  maintains  that  use.  He  may  with- 
draw his  grant  by  discontinuing  such  use.  Rights  of  prop- 
erty and,  to  a  reasonable  extent,  compensation  for  its 
use,  created  by  common  law,  can  not  be  taken  away  with- 
out due  process;  but  the  law  itself,  as  a  rule  of  conduct, 
may,  unless  constitutional  limitations  forbid,  be  changed 
at  the  will  of  the  legislature.  The  great  office  of  statutes 
is  to  remedy  defects  in  the  common  law  as  developed,  and 


THE    FOURTEENTH     AMENDMENT. 

to  adapt  it  to  the  change  of  time  and  circumstances.  The 
limitation  by  legislative  enactment  of  the  rate  of  charge 
for  services  rendered  in  a  public  employment,  or  for  the 
use  of  property  in  which  the  public  has  an  interest,  estab- 
lishes no  new  principle  in  the  law,  but  only  gives  effect 
to  an  old  one.  Where  warehouses  are  situated  and  their 
business  is  carried  on  within  a  state  exclusively,  she  may, 
as  a  matter  of  domestic  concern,  prescribe  regulations  for 
them,  notwithstanding  they  are  used  as  instruments  by 
those  engaged  in  interstate,  as  well  as  in  state,  commerce ; 
and  until  Congress  acts  in  reference  to  their  interstate  re- 
lations, such  regulations  can  be  enforced,  even  though 
they  may  indirectly  operate  upon  commerce  beyond  her 
immediate  jurisdiction." 

The  court  held  an  act  of  Illinois  providing  for  inspec- 
tion of  warehouses  for  storage  of  grain,  and  making  regu- 
lation as  to  their  business,  and  fixing  maximum  charges 
for  storing  and  handling  grain,  valid  under  the  Fourteenth 
Amendment,  and  as  not  depriving  of  liberty  and  property 
without  due  process  of  law.  In  Chicago,  etc.,  Co.  v. 
Iowa44  it  was  held  that  "railroad  companies  are  common 
carriers  for  hire.  Engaged  in  public  employment  affect- 
ing the  public  interest,  they  are,  unless  protected  by  char- 
ter, subject  to  legislative  control  as  to  rates  of  fare  and 
freight.  The  Burlington  and  Missouri  Railroad  Com- 
pany has,  within  'the  scope  of  authority  conferred  by  its 
charter,  and  subject  to  the  limitation  thereby  imposed,  the 
power  of  a  natural  person  to  contract  in  reference  to 
its  business.  Like  such  person  it,  or  its  assignee,  is,  under 

«  94  U.  S.  155. 


138  RIGHTS    AND    PRIVILEGES    UNDER 

the  same  circumstances,  at  all  times  subject  to  such,  laws 
as  the  general  assembly  of  the  state  may  from  time  to  time 
enact." 

It  held  the  act  fixing  railroad  rates  valid,  though  the 
charter  gave  the  company  right  to  fix  rates. 

In  the  case  of  Peik  v.  Chicago,  etc.,  Company45  the 
court  held  valid  acts  fixing  charges,  deciding  that  "where 
property  has  been  clothed  with  a  public  interest  the  legis- 
lature may  fix  that  which  shall  in  law  be  reasonable  for 
its  use." 

In  Georgia  Banking  Company  v.  Smith46  it  is  decided 
that  the  grant  by  a  state  to  a  .railroad  company  of  a  fran- 
chise giving  it  special  privilege  to  condemn  land,  and  the 
obligation  assumed  by  it  to  carry  at  reasonable  rates,  af- 
fect it  with  public  use,  and  gave  the  state  legislative  con- 
trol, which  may  extend  to  fixing  rates.  These  doctrines 
have  been  often  asserted  by  the  Supreme  Court.47 

A.  railroad  corporation  must  serve  all  alike.  It  can 
give  no  preference  as  to  serving  in  the  line  of  its  business. 
It  can  not  carry  for  one  and  refuse  another.  It  may  be 
compelled  to  perform  proper  and  equal  service  for  all 
by  mandamus,  and  it  is  not  thus  deprived  of  property 
without  due  process  of  law  or  denied  equality  before  the 
law.48  So  must  other  corporations.49 

But  while  these  and  other  cases  clearly  and  properly 
give  the  state  power  by  its  legislature,  notwithstanding 

45  94  U.  S.  164. 

46  128  U.   S.   174. 

47  Dow  v.   Biedelman,   125   U.   S.   680;    R.   R.   Commission   Cases, 
116  U.  S.  307;  Wabash  Co.  v.  Illinois,  118  U.  S.  557,  569;  Chicago 
Co.  v.  Wilman,  143  U.  S.  339,  344. 

48  State  v.  Pacif.  Co.  52  La.  Ann.  28  So.  284. 

40  Inter-Ocean  Pub.  Co.  v.  Asso.  Press,  184  111.  438,  48  L.  R.  A.  568. 


THE     FOURTEENTH     AMENDMENT. 

the  Fourteenth  Amendment,  to  regulate,  control  and  fix 
charges  for  railroads  or  other  corporations  carrying  on  bus- 
iness touching  the  general  public,  the  power  can  not  be 
exercised  tyrannically,  oppressively,  arbitrarily;  it  must 
be  exercised  purely  for  the  public  good,  and  that  in  a 
manner  not  destructive  of  the  adverse  interest;  for,  as 
elsewhere  stated,  great  as  is  the  police  power  of  a  state, 
everything  done  under  its  name  can  not  be  justified,  but 
must  be  a  legitimate,  necessary  act  of  police,  and  must 
pass  under  judicial  review.  The  cases  above  cited  have 
been  construed  by  some  as  giving  the  legislature  unlimited 
power  to  fix  rates,  and  that  only  it,  not  the  courts,  had 
right  to  say  what  rates  are  reasonable,  and  that  the  leg- 
islative judgment  was  final.  It  is  said  that  the  later  de- 
cisions have  seriously  qualified  Munn  v.  Illinois,  and  im- 
paired the  right  of  the  states  to  protect  the  public  against 
wrong  and  extortion  by  railroad  and  other  corporations.49 
It  is  not,  can  not  be,  claimed  that  the  power  to  regulate 
and  fix  rates  has  been  withdrawn  by  later  decisions;  but 
it  is  said  that  they  do  modify  Munn  v.  Illinois  in  the  point 
of  the  finality  of  the  judgment  of  the  legislature  as  to 
what  are  reasonable  rates,  the  Munn  Case  and  others  above 
cited  making  the  legislative  action  final  and  conclusive. 
The  case  is  capable  of  such  construction,  but  does  not  in 
words  say  so.  That  was  not  the  question  before  the 
court.  If  such  can  be  given  as  the  true  construction  of 
those  cases,  later  cases  have  modified  them.  The  case  of 
St  L.  &  San  Francisco  Co.  v.  Gill50  holds  that  an  act 
of  railroad  tariff  rates  so  unreasonably  low  as  to  practi- 
ce Note,  62  Am.  St.  R.  289. 
so  156  U.  S.  649. 


190  RIGHTS    AND    PRIVILEGES    UNDER 

cally  destroy  the  value  of  the  property  may  be  held  by 
the  courts  as  a  judicial  question,  and  adjudged  contrary 
to  the  federal  Constitution,  because  depriving  the  rail- 
road company  of  property  without  due  process  of  law.  In 
another  case51  an  act  fixing  rates  so  low  as  to  deny  a  rea- 
sonable profit  on  the  railroad  investment  was  held  viola- 
tive  of  the  Fourteenth  Amendment  in  depriving  the  com- 
pany of  property  without  due  process  of  law,  and  in  deny- 
ing it  equal  protection  of  the  law. 

It  was  held  that  the  power  to  fix  reasonable  rates  un- 
doubtedly existed  in  the  states;  but  that  the  claim  that 
any  legislature,  state  or  federal,  "can  conclusively  deter- 
mine for  the  people  and  the  courts  that  what  it  may  en- 
act in  the  form  of  law,  or  what  it  authorizes  its  agents  to 
do,  is  consistent  with  fundamental  law,  is  in  opposition  to 
our  institutions,  as  the  duty  rests  on  all  courts,  federal 
and  state,  when  their  jurisdiction  is  properly  invoked, 
to  see  to  it  that  no  right  secured  by  the  supreme  law  of 
the  land  is  impaired  or  destroyed  by  legislation.  The 
reasonableness  or  unreasonableness  of  rates  prescribed  by 
a  state  for  the  transportation  of  persons  or  property  wholly 
within  its  limits  must  be  determined  without  reference  to 
the  interstate  business  done  by  it  or  the  profits  from  that 
business.  The  state  can  not  justify  unreasonably  low 
rates  for  domestic  transportation,  considered  alone,  upon 
the  ground  that  the  carrier  is  earning  large  profits  on  its 
interstate  business,  over  which,  so  far  as  rates  are  con- 
cerned, the  state  has  no  control;  nor  can  the  carrier 
justify  unreasonably  high  rates  on  domestic  business  on 

Is 

siSmjth  v.  Amcjs,  169  U.  S.  466;  So.  Western  Union  Co.  v. 
Wyatt,  98  Fed.  335. 


THE    FOURTEENTH     AMENDMENT.  191 

the  ground  that  it  may  be  able  only  in  that  way  to  meet 
losses  on  its  interstate  business.  A  railroad  is  a  public 
highway,  none  the  less  so  because  constructed  and  main- 
tained through  the  agency  of  a  corporation  deriving  its 
existence  and  powers  from  the  state.  Such  a  corpora- 
tion was  created  for  a  public  purpose.  It  performs  func- 
tions of  the  state.  Its  authority  to  exercise  the  right  of 
eminent  domain  and  charge  tolls  was  given  primarily  for 
the  benefit  of  the  public.  It  is,  therefore,  under  govern- 
mental control — subject,  of  course,  to  constitutional  guar- 
anties for  protection  of  its  property.  It  may  not  fix 
rates  with  a  view  solely  to  its  own  interest,  and  ignore 
the  rights  of  the  public ;  but  the  right  of  the  public'  would 
be  ignored  if  rates  were  exacted  without  reference  to  the 
fair  value  of  the  property  used  for  the  public  or  of  the  ser- 
vices rendered,  in  order  simply  that  the  corporation  may 
meet  operating  expenses,  pay  interest  on  its  obligations, 
and  declare  a  dividend  to  stockholders.  If  a  railroad  cor- 
poration has  bonded  its  property  for  an  amount  exceeding 
its  value,  or  if  its  capitalization  is  largely  fictitious,  it 
can  not  impose  upon  the  public  the  burden  of  such  in- 
creased rates  as  may  be  required  to  realize  profits  on  such 
excessive  valuation  or  fictitious  capitalization;  and  the 
apparent  value  of  the  property  and  franchises  used  by 
the  corporation,  as  represented  by  its  stock,  bonds  and  ob- 
ligations, is  not  alone  to  be  considered  when  determining 
reasonable  rates.  The  basis  of  all  calculations  must  be  the 
fair  value  of  the  property  used  by  it  for  the  convenience 
of  the  public ;  and  to  ascertain  the  value,  the  original  cost 
of  construction,  the  amount  expended  in  permanent  im- 
provements, the  amount  and  market  value  of  the  bonds 


192  RIGHTS    AND    PRIVILEGES    UNDER 

and  stock,  the  present  as  compared  with  the  original 
cost  of  construction,  the  probable  earning  capacity  under 
the  particular  rates  prescribed  by  statute,  and  the  sum  re- 
quired to  meet  operating  expenses,  are  all  matters  of 
consideration  and  given  such  weight  as  may  be  just  and 
right  in  the  case.  What  the  company  is  entitled  to  ask 
is  a  fair  return  on  the  value  of  that  which  it  employs  for 
the  public  convenience;  and  what  the  public  is  entitled 
to  demand  is  that  no  more  be  exacted  from  it  for  the  use 
of  a  public  highway  than  the  services  rendered  by  it  are 
reasonably  worth/' 

This  denial  of  power  in  the  state  to  deny  rates  which 
will  give  a  fair  return  on  the  investment  is  asserted  in 
other  cases.52 

Can  there  be  Exemption  from  Rate  Regulations? — This 
sovereign  right  of  a  state  by  police  power  to  regulate, 
control  and  fix  charges  on  railroads  and  other  agencies 
can  not  likely  be  relinquished  in  charters.53  But  in  an- 
other case  it  is  assumed  that  the  right  of  the  state  may  be 
thus  restrained;54  and  in  still  another  case55  it  is  held 
that  if  the  exemption  from  legislative  regulation  as  to  rates 
is  clear  and  explicit  in  the  charter,  and  inconsistent  with 
any  power  reserved  by  the  state  to  that  effect,  it  is  a  valid 
exemption.  The  author  would  humbly  suggest  that  it  is  a 
very  grave  holding,  one  detrimental  to  the  highest  pub- 
lic interests,  one  which  may  in  process  of  years  be  dis- 

52  Railway  Co.  v.  Minnesota,  134  U.  S.  418;  San  Diego  Water 
Works  v.  City,  118  Cal.  556,  62  Am.  St.  R.  261. 

53RUggles  v.  Illinois,  108  U.  S.  526,  542;  Chicago,  etc.,  Co.  v. 
Minn.  134  U.  S.  418. 

54  Chicago,  etc.,  Co.  v.  Iowa,  94  U.  S.  155. 

56  Georgia  Bank  v.   Smith,   128  U.  S.   174. 


TEE     FOURTEENTH     AMENDMENT.  193 

astrous  to  the  public  welfare,  to  say  that  a  government  can 
thus  barter  away  its  highest  powers  of  sovereignty,  can 
tie  its  hands  forever  from  legislation  necessary  for  the 
public  good  ;  that  one  legislature  may  forever  put  a  rein 
on  the  otherwise  legitimate  power  of  all  succeeding  leg- 
islatures. The  West  Virginia  case  of  Railroad  Company 
v.  Transportation  Company,56  a  well-considered  one, 
holds  principles  as  to  this  point,  different  from  the  cases 
just  cited  from  the  Supreme  Court. 

The  doctrine  of  Munn  v.  Illinois,  so  far  as  it  goes 
to  say  that  the  power  of  the  state  to  regulate  rates  is 
consistent  with  the  Fourteenth  Amendment,  has  been 
uniformly  followed  and  insisted  upon  in  many  subsequent 
decisions  in  the  U.  S.  Supreme  Court  and  in  state  courts. 
In  one  case57  it  was  held  to  apply  to  an  act  of  the  legis- 
lature fixing  rates  for  elevating,  receiving  and  discharging 
grain  at  an  elevator  owned  by  private  individuals,  as  in 
the  Munn  Case,  because  the  private  property  was  de- 
voted to  a  business  in  which  the  public  had  an  interest 

Waterworks. — In  Spring  Valley  Waterworks  v.  Schlot- 
ler58  it  was  held  that  a  town  might  fix  water  rates  for 
a  waterworks  company,  when  not  forbidden  by  consti- 
tutional limitations  or  contract  obligation.  The  charter 
allowed  the  corporation  to  take  part  in  the  choice  of  a 
board  of  commissioners  to  fix  rates,  and  the  constitution 
and  law  were  amended  so  as  to  deprive  the  corporation  of 
this  right.  Held  not  to  violate  the  Constitution  of  the 
United  States. 

R6  25  W.  Va.  324 ;  Newburyport  Water  Co.  v.  City,  103  Fed.  584. 

ST  Budd  v.  New  York,  143  U.  S.  517.  See  also  Brass  v.  Stoeser, 
153  U.  S.  391.  Janvrin,  petitioner,  174  Mass.  514. 

ss  110  U.  S.  347 ;  see  Janvrin  Case,  174  Mass.  514;  see  Los  An?ole« 
v.  Los  Angeles  Co.,  177  U.  S.  558;  Freeport  Co.  v.  City,  186  111.  170. 


194  RIGHTS    AND    PRIVILEGES    UNDER 

In  Chicago  Company  v.  Minnesota59  an  act  estab- 
lishing a  railroad  and  warehouse  commission,  and  making 
the  rates  of  transportation  fixed  by  it  final  and  conclu- 
sive, was,  because  of  that  conclusive  feature,  held  re- 
pugnant to  the  Fourteenth  Amendment  as  depriving  the 
company  of  property  without  due  process  of  law  and 
denying  it  equal  protection  of  the  law.  A  later  case 
so  holds.60  But  another  case61  holds  that  the  case  of 
Chicago  Company  v.  Minnesota,  supra,  does  not  antag- 
onize or  qualify  Munn  v.  Illinois  (94  IT.  S.  113). 

In  a  later  case62  an  act  required  railroad  thousand- 
mile  tickets  to  be  sold  at  a  fixed  rate,  and  to  be  good 
to  the  purchaser  and  wife  and  children,  valid  for  two 
years,  and  to  be  redeemed,  so  for  as  unused,  within 
thirty  days  after  the  two  years.  The  act  was  held  void 
under  the  Fourteenth  Amendment  as  taking  property 
without  due  process  and  denying  equal  protection  of  the 
law,  the  court  saying  that  while  the  state  had  right  by  gen- 
eral and  equal  law  to  fix  maximum  rates,  this  was  an  act 
applicable  only  to  wholesale  purchasers  at  lower  rates, 
leaving  other  people  liable  to  the  usual  higher  rate  fixed 
by  the  general  law,  interfering  with  the  management  of 
the  affairs  of  the  company  by  fixing  the  running  time  of 
tickets  at  double  the  former  period  and  lower  rates,  and 
making  the  tickets  good  to  all  the  members  of  the  family. 
It  was  adjudged  to  be  not  a  reasonable  exercise  of  the 
police  power.  Still,  the  court  is  careful  to  say  that  the 

59134  U.  S.  418. 

eo  Regan  v.  Farmers  Loan,   154  U.   S.   362. 

61  Budd  v.  New  York,  143  U.  S.  517. 

62  Lake  Shore  v.  Smith,  173  U.  S.  684. 


TUB    FOURTEENTH     AMENDMENT.  195 

act  which  it  passed  upon  was  exceptional   in  character 
• 

owing  to  its  peculiar  features,  and  the  court  further 
said  that  it  was  not  intended  to  interfere  with  the  power 
of  the  legislature  over  railroads  as  corporations  or  com- 
mon carriers,  "to  so  legislate  as  to  fix  maximum  rates 
to  prevent  extortion  or  undue  charges,  and  to  promote 
safety,  health,  convenience  or  proper  protection  of  the 
public;  but  it  only  says  that  the  particular  legislation 
under  review  in  the  case  does  not  partake  of  the  character 
of  legislation  fairly  or  reasonably  necessary  to  attain  any 
of  those  objects,  and  that  it  violates  the  federal  Constitu- 
tion as  above  stated." 

The  Court  of  Appeals  of  New  York  in  Beardly  v.  N". 
Y.  L.  E.  &  W.  Company,63  held  a  similar  act  void,  saying 
that  it  yielded  to  the  power  of  the  federal  Supreme  Court 
as  expressed  in  the  case  of  Lake  Shore  v.  Smith,  just 
above  cited. 

Rate  Regulation  must  not  Destroy  Company  Control.— 
The  power  above  stated  of  a  state  legislature  to  regulate 
rates  of  transportation  and  the  like  can  not  carry  with  it 
the  right  to  invade  the  lawful  power  of  the  company  to 
manage,  conduct  and  control  its  own  business,  to  hamper 
or  restrict  its  general  control  of  its  property  in  the  trans- 
action of  its  legitimate  business.  The  said  power  of  reg- 
ulation includes  only  powers  reasonably  necessary  and 
calculated  to  promote  public  welfare  in  furthering  the 
objects  above  specified.  Whenever,  forgetful  of  these 
high  public,  impartial  behests,  the  legislature  acts  out  of 
mere  prejudice  against  a  corporation,  ignoring  all  idea 

«s  56  N.  E.  R.  488 ;   162  N.  Y.  230. 


196  RIGHTS    AND    PRIVILEGES    UNDER 

that  it  has  any  rights  which  the  legislature  is  bound  to 
respect,  it  is  not  constitutionally  exercising  salutary  police 
powers,  but  only  unfair,  arbitrary  power. 

Power  to  Regulate,  not  Power  to  Destroy. — The  cases 
above  cited,  as  also  Railroad  Commission  Cases,64  declare 
that  this  power  to  regulate  is  not  power  to  destroy.  They 
hold  that  power  in  a  state  to  limit  the  amount  of  rail- 
road charges  can  not  be  granted  away  by  its  legislature, 
except  by  positive  words,  or  their  equivalent,  in  the  grant ; 
that  a  grant  to  a  company  from  "time  to  time  to  fix,  reg- 
ulate and  receive  tolls  and  charges,"  does  not  deprive 
the  state  of  power,  within  the  limits  of  its  general  author- 
ity, as  controlled  by  the  federal  Constitution,  to  act  on 
the  reasonableness  of  tolls  so  fixed;  but  from  what  has 
been  said  it  is  not  to  be  inferred  that  this  power  of  limi- 
tation or  regulation  is  itself  without  limit.  This  power 
to  regulate  is  not  a  power  to  destroy,  and  limitation  is 
not  the  equivalent  of  confiscation.  Under  pretence  of  reg- 
ulating fares  and  freights  the  state  can  not  require  a 
railroad  corporation  to  carry  persons  and  property  with- 
out reward;  neither  can  it  do  that  which  in  law  amounts 
to  a  taking  of  private  property  for  public  use  without 
just  compensation  or  without  due  process  of  law.  This 
doctrine  is  held  also  in  Reagan  v.  Farmers  Loan.65 

What  are  Reasonable  Rates? — This  question  is  largely 
at^sea.  It  would  seem  that  the  power  of  the  state  to  fix 
rates  being  once  conceded,  its  action  by  its  legislature  on 
mere  amount  ought  to  be  conclusive,  the  legislative  judg- 
ment seeming  to  be  as  good  as  that  of  judges  on  such  a 

6*116  U.  S.  307. 
65  154  U.   S.   399. 


THE    FOURTEENTH     AMENDMENT.  197 

subject.  The  nature  of  the  function  is  purely  legislative. 
The  Supreme  Court  admits  that  no  court  can  fix  the  rates, 
though  it  can  overthrow  those  fixed  by  the  state  legislature. 
It  seems  to  me  that  there  is  an  inconsistency  here.  With 
great  deference  I  would  think  that  the  question  of  amount 
of  rates  is  solely  for  the  legislature,  not  for  the  courts, 
as  is  strongly  stated  by  Justice  Bradley  for  himself  and 
Justices  Brewer  and  Lamar  in  the  case  cited  in  the  foot- 
note.06 But  it  is  said  that  the  fabric  of  our  government 
implies,  and  the  general  understanding  is,  that  as  the  leg- 
islature usually  proceeds  ex  parie,  without  hearing  the 
ether  side,  the  great  maxim  of  justice,  Audi  alteram  par- 
iem,  is"  controlling,  and  that  where  two  grave  adverse  in- 
terests are  involved,  their  rights  must  be  brought  to  ju- 
dicial hearing  and  test.  Such  is  the  decree  in  this  mat- 
ter of  our  courts,  federal  and  state.  But  while  the  rates 
fixed  by  the  legislature  are  not  absolutely  conclusive,  they 
are  well-nigh  so;67  they  must  be  transparently  unreason- 
able to  be  overthrown ;  they  are  more  than  prima  facie 
reasonable. 

"Courts  assume  that  the  legislature  intended  to  pro- 
mote the  public  interests,  and  where  the  act  admits  of 
two  constructions,  one  making  it  in  furtherance  of  those 
interests,  that  will  be  given  it."  If  it  may  serve  such  in- 
terest, it  is  enough.68 

"Courts  will  not  inquire  into  the  motives  of  legisla- 
tors in  enacting  laws,  except  as  they  are  disclosed  on 
the  face  of  acts,  or  be  inferable  from  their  operation, 

c«  Chicago,  etc.,  Co.  v.  Minnesota,  134  U.  S.  461. 
e?  People  v.   Budd,   117   N.  Y.   25. 
«s  People  v.  Warden,   144  N.  Y.  529. 


198  RIGHTS    AND    PRIVILEGES    UNDER 

considered  with  reference  to  the  condition  of  the  country 
and  existing  legislation.  The  motives  of  legislators,  con- 
sidered as  to  the  purposes  they  had  in  view,  will  always  be 
presumed  to  be  to  accomplish  that  which  follows  as  the 
natural  and  reasonable  effect  of  their  acts."69  On  this 
principle  I  would  think  the  presumption  would  be  that  a 
fair,  impartial  motive  in  fixing  railroad  rates  to  promote 
the  public  weal  as  well  as  accord  the  railroad  its  rights 
existed.  The  courts  can  not  establish  rates ;  but  may  enjoin 
the  enforcement  of  unjust  rates,  and  call  for  their  rees- 
tablishment  by  the  legislature,  or  the  state  board  charged 
with  the  duty.70  In  the  Reagan  Case  the  court  says  that 
it  would  not  declare  that  there  might  not  be  a  case  where 
rates  not  allowing  any  return  on  investment  might  be 
tolerated,  as  in  cases  where  money  had  been  wasted  in  con- 
struction, or  in  inordinate  salaries  or  other  profligacy.  The 
cases  seem  to  say  that  where  the  rates  fixed  by  the  legis- 
lature secure  some  return  on  the  investment,  the  legisla- 
tion is  valid.  Where  the  legislation  goes  further  than 
mere  regulation,  and  deprives  the  company  of  its  legit- 
imate control,  or  has  other  features  than  mere  amount  of 
charge,  which  take  from  it  the  cast  of  legitimate  police 
action,  it  is  not  valid. 

Board  to  Fix  Rates — The  legislature  may  itself  by  its 
act  fix  rates  of  freight  or  passage,  or,  as  is  done  in  most 
states,  constitute  a  board  or  commission  to  adjust  rates, 
and  make  legitimate,  general  regulations  for  railroads. 

69  Soon   King  v.   Crowley,    113   U.   S.   703. 

70  Reagan  v.  Farmers  Loan,  154  U.  S.  400;  San  Diego  Water  Co. 
v.  City,  62  Am.   St.  R.  261. 


THE    FOURTEENTH     AMENDMENT.  199 

Such  board  is  an  administrative  body,  not  legislative, 
constituted  to  carry  out  the  will  of  the  legislature.71 

This  doctrine  of  state  power  to  control  railroads  and 
fix  rates  is  asserted  by  many  state  cases.72 

State  Regulation  of  Rates  Applies  to  Other  Companies 
besides  Railroads. — It  will  not  be  out  of  place  to  repeat, 
for  emphasis,  that  this  power  of  the  state  to  make  rates 
and  other  regulations  bona  fide  for  public  good  is  not  only 
applicable  to  railroads,  but  applies  to  individuals,  with 
or  without  state  license,  or  to  corporations  devoting  prop- 
erty to  public  use,  so  that  the  general  public  has  an  inter- 
est in  such  use,  in  any  business  not  in  nature  private, 
but  closely  in  touch  with  the  public.  The  public  weal 
demands  this  power.  It  is  justified  under  the  police 
power,  and  is  consistent  with  the  Fourteenth  Amend- 
ment. Munn  v.  Illinois 73  and  other  Supreme  Court 
cases  so  hold.  So  do  state  cases.74 

This  subject,  especially  as  to  railroads,  is  of  grave  and 
daily  importance,  and  therefore  I  have  devoted  consider- 

Ti  Reagan  v.  Farmers  Loan,  154  U.  S.  362. 

72  Railroad  Co.  v.  Transport  Co.  25  W.  Va.  324;  Rugglea  »- 
People,  91  111.  256;  Railway  v.  Railway,  30  Ohio  St.  604. 

"94  U.   S.   113. 

74  San  Diego  Water  Co.  v.  City,  62  Am.  St.  2bl  (Waterworks)  ; 
People  v.  N.  Y.  145  U.  S.  175  (Electric  Works)  ;  Missouri  Co.  v. 
Maekey,  127  U.  S.  205  (Fellow-servants);  Spring  Valley  Co.  v. 
Schlotler,  110  U.  S.  347  (Waterworks)  ;  State  v.  Columbus,  34 
Ohio  St.  572,  32  Am.  R.  390;  Nash  v.  Page,  80  Ky.  539,  44  Am.  R. 
490  (Tobacco  Warehouse)  ;  Hacket  v.  State,  105  Ind.  250,  55  Am. 
R.  201  (Telephone)  ;  Parker  v.  Metrop.  Co.  109  Mass.  507  (Ferry)  ; 
State  v.  Gadner,  58  Ohio  St.  599,  51  N.  E.  136;  Dent  v.  W.  Va.  129 
U.  S.  114  (Physicians)  ;  State  v.  Webster,  50  X.  E.  750,  41  L.  R.  A. 
212  (Physician);  14  L.  R.  A.  581  (Dentists);  The  Bread  Case, 
Mayor  v.  Yuille,  3  Ala.  37  (Regulating  price  of  bread  and  requir- 
ing license  to  sell  it). 


200  RIGHTS    AND    PRIVILEGES    UNDER 

able  space  in  the  effort  to  outline  the  general  principles 
laid  down  by  the  courts  touching  it. 

Private  Business  not  Subject  to  such  Regulation. — Con- 
ceding the  right  to  the  states  to  enact  police  regulations 
where  private  property  is  devoted  to  public  use,  so  far  as 
to  give  an  interest  to  the  public  in  that  use,  yet  where  the 
business  is  purely  private  this  wide  police  power  does 
not  exist.  While  guarding  the  public  right  and  welfare, 
we  must  not  forget  the  person's  right;  we  must  not  sub- 
merge the  right  of  the  individual  in  the  ocean  of  public 
right.  There  must  not  be  too  much  government  interven- 
tion. Where  such  is  the  case,  government  is  not  free,  but 
tyrannic.  Was  it  Jefferson  who  said,  "The  world  is  gov- 
erned too  much"  ?  Government  was  not  originated  to  be 
either  tyrannic  or  merely  paternal.  All  men  are  free  by 
nature.  They  have  certain  inalienable  rights,  says  the 
Declaration  of  Independence.  When  they  enter  into  the 
body  politic  they  do  not  give  up  these  rights.  They  have 
not  done  so  in  words,  and  no  mere  implication  arising 
simply  from  their  membership  in  the  civil  organization 
should  be  indulged  in  to  divest  them  of  these  rights. 
They  have  right  of  life,  right  of  property,  and  with 
the  aid  of  property  as  a  handmaid  to  earn  a  livelihood  in 
their  own  ways,  not  harming  others.  They  have  right 
to  labor,  right  to  contract,  right  to  do  business.  These  are 
rights  of  liberty,  inhering  in  and  sheltered  by  the  word 
"liberty"  expressed  in  the  Constitution,  as  above  shown. 
Legislation  for  the  high  public  behest  of  public  safety 
and  welfare  can  justly  detract  from  those  rights,  but  not 
otherwise.  No  call  but  a  necessary  public  want  can  do  so. 
The  public  must  have,  in  the  instance  of  the  particular  act 


THE    FOURTEENTH     AMENDMENT.  201 

of  government,  a  right  to  demand  it.  All  the  law  of  police 
as  shown  in  preceding  pages,  tells  us  this.  As  Webster 
said,  every  act  of  the  legislature,  though  such  in  form, 
is  not  due  process  of  law;  so  every  act  claiming  to  be  an 
act  of  police,  is  not  necessarily  one  of  legitimate  police. 
I  have  elsewhere  cited  authority  for  this.75  Many  acts 
sought  to  be  justified  by  the  police  power,  when  brought 
to  judicial  test,  have  been  overthrown  because  wanting 
the  true  quality  of  police.  I  have  elsewhere  given  in- 
stances of  this  (p.  173).  Take  the  West  Virginia  act 
prohibiting  persons  engaged  in  coal-mining  from  is- 
suing in  payment  of  wages  any  order  on  a  store  or 
paper  payable  in  anything  else  than  money.  In 
State  v.  Goodwill76  it  was  held  violative  of  the 
Fourteenth  Amendment,  because  it  forbade  certain 
contracts  by  coal  operators,  thus  bearing  not  on  others, 
and  denying  equality  before  the  law,  and  infringing  upon 
the  liberty  of  both  employer  and  employee  to  purchase 
and  sell  labor  for  what  the  contracting  parties  might 
choose.  The  court  held:  "It  is  not  competent  for  the 
legislature,  under  the  constitution,  to  single  out  owners 
and  operators  of  mines  and  manufacturers  of  every  kind, 
and  provide  that  they  shall  bear  burdens  not  imposed  on 
other  owners  of  property  or  employers  of  labor,  and  pro- 
hibit them  from  making  contracts  which  it  is  competent 
for  other  owners  of  property  or  employers  of  labor  to 
make.  Such  legislation  can  not  be  sustained  as  an  act 
of  the  police  power."  The  opinion  by  the  eminent  Judge 
Snyder  is  a  lucid  exposition  of  constitutional  law. 

75  See  cases  cited  in  Palmer  v.  Tingle,  55  Ohio  St.  423. 
7fl  33  W.  Va.  179,  25  Am.  St.  R.  863. 


202  RIGHTS    AND    PRIVILEGES    UNDER 

In  another  West  Virginia  case77  an  act  prohibiting 
persons  engaged  in  mining  and  manufacturing,  and  inter- 
ested in  selling  merchandise,  from  selling  to  employees  at 
greater  percent  than  to  others,  was  held  contrary  to  the 
Fourteenth  Amendment,  because  it  was  class  legislation, 
and  an  interference  with  the  freedom  of  contract,  both  in 
employer  and  employee.  The  court  said:  "The  statute 
is  a  Procrustean  bed.  It  consigns  all  sizes  and  conditions 
to  the  same  measure  of  treatment,  regardless  of  their  dif- 
ferences. It  excludes  all  freedom  in  trade,  and  all  con- 
siderations of  mutual  benefit,  and  even  charity.  If  the 
employer  sells  goods  to  the  family  of  some  friend  in  in- 
digent circumstances  at  less  than  cost,  then,  under  this 
statute,  he  must  sell  at  the  same  price  to  all  his  employees. 
But  it  is  unnecessary  to  illustrate  the  vices,  the  crudities 
and  the  injustice  of  the  statute.  That  it  is  an  attempt  to 
do  for  private  citizens,  under  no  physical  or  mental  dis- 
ability, what  they  can  best  do  for  themselves,  is  appar- 
ent. It  selects  miners  and  manufacturers  as  a  class,  and 
denies  to  them  privileges  which  are  not  only  proper  and 
legitimate  in  themselves,  but  also  to  some  extent  neces- 
sary and  unavoidable  in  the  conduct  of  business;  privi- 
leges which  concern  private  affairs  solely,  and  which  are 
enjoyed  by  all  other  classes  of  citizens.  It  is  an  attempt 
on  the  part  of  the  legislature  to  do  what,  in  this  country, 
can  not  be  done;  that  is,  prevent  persons  who  are  sui 
juris  from  making  their  own  contracts.  The  act  is  an 
infringement  alike  of  the  right  of  the  employer  and  the 
employee.  More  than  this,  it  is  an  insulting  attempt  to 

77  State  v.  Fire  Creek  Co.  33  W.  Va.  188,  25  Am.  St.  R.  891. 


Tilt}     FOURTEENTH     AMENDMENT.  203 

put  the  laborer  under  legislative  tutelage,  which,  is  not 
only  degrading  to  his  manhood,  but  subversive  of  his 
rights  as  a  citizen  of  the  United  States.  Godcharles  v. 
Wigeman,  113  Pa.  St.  431,  6  Atl.  E.  354."  Such  acts 
violate  principles  of  liberty,  as  heretofore  explained 
(p.  00).  They  deny  equality  before  the  law.  They  vio- 
late the  state  constitution;  they  violate  the  Fourteenth 
Amendment. 

In  a  later  case78  similar  principles  were  involved. 
One  act  forbade  the  issue  of  scrip,  token  or  draft  not 
payable  in  money  in  payment  of  wages.  Unlike  the  act 
involved  in  the  Goodwill  Case,  it  applied,  not  to  coal 
operators  only,  but  to  all.  Thus  it  was  not  class  legisla- 
tion. The  other  act  required  coal  operators  to  weigh  coal 
and  pay  for  it  weighed  in  the  rough  before  being 
"screened"  for  market.  ,  The  case  is  erroneously  pub- 
lished. It  is  published  as  if  the  syllabus  were  law  in 
West  Virginia.  It  is  not,  the  court  being  equally  divided, 
and  therefore  the  case  is  not  law  except  in  the  particular 
case  by  affirmance  of  the  judgment  below.  The  author 
took  part  in  the  decision  of  the  case,  and  denied  the  valid- 
ity of  the  acts  on  the  ground  that  the  business  acted  upon 
by  the  "screening  act"  was  private  business,  not  so  in 
touch  with  the  public  as  to  justify  regulation  in  its  con- 
duct under  the  police  power;  and  also  because  both  acts 
infringed  upon  the  right  of  private  contract,  impairing 
the  right  essential  to  both  employer  and  employee  to  con- 

78  State  v.  Peel  Splint  Coal  Co.  36  W.  Va.  802,  15  S.  E.  1000. 
See  Harding  v.  People,  160  111.  459,  52  Am.  St.  R.  344,  holding  such 
legislation  void.  See  also  lucid  case,  Harbison  v.  Knoxville  Iron 
Co.  103  Tenn.  421.  In  re  Preston  (Ohio.  Nov.  1900),  59  N.  E.  101, 
holds  screening  act  void. 


204  RIGHTS    AND    PRIVILEGES    UNDER 

tract  for  labor  on  such  terms  and  payment  as  might  be 
agreed,  and  denying  liberty  and  depriving  of  the  use  of 
property  without  due  process.  The  right  of  lawful  con- 
tract in  the  conduct  of  lawful  business,  by  persons  com- 
petent to  contract,  can  not  thus  be  infracted.  Every 
business  is  to  a  degree  public;  the  coal  operator's  not 
more  so  than,  not  as  much  as,  the  farmer's ;  and  who  would 
deny  the  farmer  privilege  to  contract  in  the  conduct  of  his 
business  ?  Such  legislation  has  been  held  invalid  in  some 
states,  valid  in  others. 

The  acts  against  paying  wages  in  orders  on  stores  re- 
deemable not  in  money,  but  in  commodities,  spring  from 
the  English  "Truck  Act"  of  1831,  or  rather  from  old 
acts  commencing  as  early  as  1464,  first  touching  one  kind 
of  manufacture,  then  another,  then  many.  They  are 
born  of  the  good  motive  of  protecting  men  of  small  means 
dependent  upon  their  labor  for  bread,  and  placed  in  the 
power  of  wealthy  employers,  and  therefore  compelled  to 
contract  for  the  sale  of  their  labor  at  a  disadvantage ;  and 
the  acts  go  upon  the  theory  that  they  are  legitimate  police 
regulations,  because  the  business  they  touch  "is  affected 
with  a  public  interest,"  and  that  where  this  is  so,  the  legis- 
lature may  legislate  for  the  general  weal,  as  in  the  case 
of  railroads  and  other  common  carriers,  or  gas  or  water 
companies  for  public  supply,  or  hotels,  mills,  warehouses 
and  the  like,  under  principles  stated  above  (p.  185)  from 
Munn  v.  Illinois.79 

On  the  other  hand,  it  is  asserted  for  the  other  view 
that  coal-mining  or  other  like  private  business  is  by  com- 

7»94  U.  S.  113. 


THE     FOURTEENTH     AMENDMENT.  205 

inon  law  not  like  common  carriers  and  others  just  named; 
that  it  is  not  monopoly;  that  the  public  is  not  compelled 
to  resort  to  those  who  sell  coal,  wood,  grain  or  animals, 
though  they  do  deal  with  the  public  in  things  necessary 
for  subsistence  or  convenience,  as  all  in  any  business  must 
do.  License  from  the  public  is  not  necessary  to  carry 
on  these  vocations.  And  they  say,  moreover,  that  this  is 
a  free  government,  where  everybody  has  a  right  to  earn 
a  living  and  pursue  happiness  by  selling  his  labor  or  his 
goods,  or  making  any  legitimate  contract,  a  right  of 
liberty  and  a  right  of  property  embedded  in  the  Consti- 
tution. They  say  that  in  a  free  government  all  these 
rights  must  exist,  and  that  mere  accidental  hardships 
can  not  be  relieved  by  infraction  of  fundamental  prin- 
ciples of  equality  before  the  law.  Locke  stated  the  rule 
for  legislators  now  incorporated  in  the  equality  clause  v 
of  the  Fourteenth  Amendment:  "They  are  to  govern 
by  promulgated,  established  laws,  not  to  be  varied  in 
particular  cases,  but  to  have  one  rule  for  rich  and  poor, 
for  the  favorite  at  court  and  the  countryman  at  the  plow." 

In  Commonwealth  v.  Perry80  an  act  that  the  employ- 
er should  not  deduct  from  wages  for  bad  weaving,  as 
per  contract,  was  held  void  as  a  denial  of  the  right  "of 
acquiring,  possessing  and  protecting  property."  The  act 
made  a  man  pay  for  bad  weaving,  though  he  would  not 
have  to  pay  for  a  badly-built  house — class  legislation. 

In  Frorer  v.  People 81  an  act  requiring  wages  to  be 
paid  in  money,  prohibiting  those  engaged  in  mining  and 
manufacturing  from  having  "truck  stores"  for  selling  or 

so  155  Mass.  117,  31  Am.  St.  R.  533. 
si  141   111.  171. 


RIGHTS    AND    PRIVILEGES    UNDER 

furnishing  to  laborers  groceries,  clothing,  tools,  etc.,  was 
held  unconstitutional  as  class  legislation,  placing  bur- 
dens on  some  persons  not  imposed  on  others,  and  impair- 
ing the  right  of  contract;  but  as  to  matters  wherein  min- 
ing and  manufacturing  differed  from  other  industrial 
branches  they  were  subject  to  legislative  regulation;  but 
keeping  a  store  was  a  lawful  business,  not  connected  with 
mining  or  manufacturing;  that  the  right  to  contract  is 
both  liberty  and  property,  and  denial  of  it  a  deprivation 
of  both;  that  if  A  is  denied  right  to  contract  and  acquire 
property  as  before,  and  others  are  left  free  to  do  so,  A 
is  deprived  of  both  liberty  and  property;  that  the  police 
power  is  limited  to  the  protection  of  comfort,  safety  and 
welfare  of  society,  but  under  it  one  can  not  be  deprived 
of  a  constitutional  right,  such  as  the  right  of  an  adult 
of  sound  mind  to  make  contracts  as  to  labor  and  acqui- 
sition of  property,  under  pretence  of  giving  such  person 
protection.  In  Ramsey  v.  People  82  an  act  requiring  coal 
to  be  weighed  before  screening  and  the  mining  to  be  paid 
for  on  such  weight,  was  held  to  deprive  of  liberty  and 
property  and  right  of  contract  without  due  process. 

In  Bracewell  v.  People  83  an  act  requiring  weekly  pay- 
ment of  wages  by  corporations  was  held  violative  of  liber- 
ty, class  legislation,  deprivative  of  right  to  contract  and 
acquire  property. 

So  an  act  declaring  void  all  contracts  for  mining  coal 
in  which  weighing  coal  at  mines  was  dispensed  with  was 
held  unconstitutional.84 

82  142  111.  380.     So  In  re  Preston,  59  N.  E.  101. 

ss  147  111.  66,  37  Am.  St.  R.  206. 

s*  Millet  v.  People,   117   111.  294,  57  Am.  R.   869. 


THE    FOURTEENTH     AMENDMENT.  9QJ 

In  another  case85  an  act  prohibiting  any  persons  or 
corporations  engaged  in  manufacturing  or  mining  from 
paving  wages  in  any  order  not  redeemable  in  money,  but 
in  goods  at  the  store  of  the  person  or  corporation  issuing 
it,  was  held  to  violate  due  process  of  law. 

An  act  forbidding  any  payment  of  wages  by  a  manu- 
facturer in  anything  but  money  was  held  void  "inasmuch 
'as  by  it  an  attempt  is  made  to  do  what  in  this  country 
can  not  be  done,  that  is,  prevent  persons  who  are  sui 
juris  from  making  their  own  contracts."  86 

"The  legislature  can  not  interfere  with  the  right  of  par- 
ties to  contract  on  matters  purely  and  exclusively  private, 
unaffected  by  any  public  interest  or  duty  to  society,  to 
person  or  government."  87 

The  Fourteenth  Amendment  does  not  guarantee  the 
right  to  contract  within  the  state  contrary  to  its  laws.88 

I  hardly  think  that  Shaffer  v.  Union  Company89  can 
be  said  to  hold  squarely  against  the  above  principles, 
the  main  question  in  it  being  the  prohibition  of  the  as- 
signment of  wages  by  employees;  a  doubtful  decision, 
as  it  seems  to  me,  because  it  took  away  from  a  certain 
class  of  people  the  right  to  sell  a  debt,  that  is,  property, 
leaving  the  right  open  to  others. 

An  Indiana  statute  prohibited  a  contract  in  advance 
to  receive  wages  in  anything  but  money,  and  it  was  held 
valid  as  protecting  and  maintaining  lawful  national 

85  State  v.  Loomis,  115  Mo.  307. 

se  Goodcharles  v.  Wigeman,   113  Pa.  St.  431. 

8?Leep  v.  Iron  Mountain  Co.  58  Ark.  407,  23  L.  R.  A.  264. 
See  Whito  Preast  Co.  v.  People,  175  111.  51. 

*s  Hooper  v.  California,  155  U.  S.  648;  Williams  v.  Fears,  179  U. 
S.  — ,  21  Sup.  Ct.  230. 

8»55  Md.  74. 


208  RIGHTS    AND    PRIVILEGES    UNDER 

money.90  That  was  given  as  the  reason  of  the  judgment. 
I  should  doubt  the  rationale  of  the  decision.  Plainly, 
the  thing  prohibited  by  the  act  could  not  appreciably 
militate  against  the  government  credit  or  the  efficacy  of 
its  circulating  medium.  It  is  not  certain  whether  the 
decision  does  or  does  not  contest  the  general  principles 
above  stated. 

In  State  v.  Wilson91  is  a  very  able  opinion  holding 
valid  an  act  which  prohibited  the  screening  of  coal  before 
weighing,  as  regards  payment  for  mining,  in  cases  where 
it  is  mined  at  a  certain  rate  per  ton  or  quantity. 

Dayton  v.  Barton92  holds  an  act  requiring  store  or- 
ders issued  for  wages  to  be  paid  in  money  not  contrary 
to  the  Fourteenth  Amendment. 

The  Kansas  act  above  adverted  to,  making  it  unlawful 
to  pay  wages  in  scrip,  token  or  credit  order,  redeemable 
in  anything  else  than  money,  was  again  held  consistent 
with  the  Fourteenth  Amendment  by  the  Kansas  Court 
of  Appeals;93  but  the  decision  was  reversed  in  the  Su- 
preme Court  of  the  state.94 

An  act  which  prohibited  railroad  and  mining  corpora- 
tions, their  officers  or  agents,  doing  business  in  a  county 
from  having  a  store,  or  any  interest  in  a  store,  in  such 
county,  was  held  to  violate  the  Fourteenth  Amendment, 
in  denying  equal  protection  of  the  law,  and  such  classi- 

»o  Hancock  v.  Yaden,  121  Ind.  366,  16  Am.  St.  R.  396. 
9i7  Kan.  App.  428,  58  Pac.  981. 

9253  S.  W.  R.  970.  Also  Harbison  v.  Knoxville  Iron  Co.  103 
Tenn.  421. 

»3  Haun  v.  State,  54  Pac.  130,  7  Kan.  App.  509. 
»4  State  v.  Haun,  59  Pac.   340,  61   Kans.   146. 


TH&    FOURTEENTH     AMENDMENT.  209 

fication  of  corporations  and  persons  as  interfered  with 
their  liberty.95 

A  late  Tennessee  case 96  holds  that  an  act  requiring 
those  issuing  such  store  orders  in  payment  of  wages  to 
redeem  the  same  in  money  does  not  violate  the  Fourteenth 
Amendment  in  taking  property  without  due  process  of 
law. 

The  question  in  such  cases  as  those  referred  to  above 
is,  What  is  a  business  "affected  with  a  public  interest," 
so  as  to  justify  legislative  regulation  under  the  police 
power?  This  is  a  very  difficult  question.  As  has  just 
appeared,  the  courts  divide  upon  it.  It  is  very  easy  to 
state  general  principles,  in  this  instance  as  in  others,  but 
the  practical  application  of  those  principles  to  particular 
cases  as  they  arise  is  a  matter  of  perplexity  and  produc- 
tive of  variant  decisions. 

Inspection  and  Ventilation  of  Coal  Mines — Legislation 
requiring  this  at  the  hands  of  coal  operators  is  very  gen- 
eral in  the  states  of  the  Union,  and  is  designed  for  the 
protection  of  both  the  lives  and  health  of  the  thousands  of 
those  who  toil  in  the  deep,  dark  coal-mines,  amid  great  and 
constant  dangers  from  deadly  gas  that  infests  them  and 
the  foul  air  in  them.  The  great  police  power  has  its 
plainest  application  in  regulations  necessary  or  expe- 
dient for  the  preservation  of  the  lives  and  health  of  the 
people.  It  is  very  plain  that  this  power  will  vindicate 
abundantly  the  enactment  of  such  legislation.  It  is  true 
that  coal-mining  is  a  private  business,  and  so  far  merely 
as  that  feature  of  it  is  concerned,  some  of  the  ablest 

ssLuman  v.  Kitchens,  44  Atl.  R.  1051    (Md.) 

»6  Harbison  v.  Knoxville  Iron  Co.  53  S.  W.  R.  955,  103  Tenn.  421. 


210  RIGHTS    AND    PRIVILEGES    UNDER 

courts  of  the  land  have  sternly  maintained,  by  decisions 
given  in  the  last  preceding  pages,  that  the  legislature  has 
no  constitutional  power  to  so  interfere  with  such  business 
as  to  deprive  coal  operators  and  their  employees  of  free- 
dom of  contract;  but  that  is  an  entirely  different  mat- 
ter from  the  power  of  the  legislature  to  so  far  interfere 
in  such  business,  private  though  it  be,  as  to  protect  the 
many  thousands  of  people  in  their  health  and  their  lives. 
Such  is  the  legislation  of  which  we  now  speak.  Nor  is 
the  fact  that  hundreds  of  thousands  of  people  work  in 
these  mines  night  and  day  the  justification  of  such  leg- 
islation. Some  have  appealed  to  that  consideration  'to 
justify  the  legislature  in  dictating  what  shall  be  the  char- 
acter of  contracts  between  coal  operators  and  their  em- 
ployees, what  contracts  between  them  shall  be  void,  how 
wages  shall  be  paid,  saying  that  the  business  is  so  wide- 
spread as  to  touch  public  interest,  and  thus  justify  in- 
tervention; but  that  is  no  valid  argument — the  mere  size 
of  the  business.  We  must  look  at  the  purpose  of  the 
legislation,  the  evil  to  be  remedied  or  avoided,  to  test 
whether  given  legislation  is  a  legitimate  exercise  of  the 
police  power.  Legislation  must  allow  people  to  make  a 
living;  it  does  not  actively  help  them  to  do  so  by  inter- 
vening between  persons  competent  to  contract  in  favor  of 
the  one  over  the  other;  but  the  legislature  has  the  clear- 
est right  to  legislate  to  protect  the  health  and  lives  of 
the  many  thousands.  Under  these  principles  there  has 
been  very  little  question  of  the  validity  of  legislation  for 
the  inspection  and  ventilation  of  coal-mines.  An  act  re- 
quiring coal-mines  to  be  inspected  and  ventilated  to  pro- 
tect miners  from  the  foul  air  and  dangerous  gases,  and 


TUB    FOURTEENTH     AMEXDUEXT.  211 

requiring  mine-owners  to  pay  the  inspection  fees,  was 
held  to  be  a  valid  exercise  of  the  police  power,  and  that 
such  payment  of  inspection  fees  was  for  services  beneficial 
to  the  owners  of  the  mines.97 

It  has  also  been  held  that  legislation  requiring  the  in- 
spection of  grain  and  the  payment  of  fees  therefor  by 
the  grain-owners  was  lawful  legislation.98 

Delegation  of  Police  Power. — The  great  police  power 
resides  in  the  state;  but  it  is  impossible  that  the  state 
should  itself  be  present  in  every  instance  to  enforce  police 
regulations,  or  that  it  should  provide  for  the  multitudi- 
nous instances  of  its  exercise  by  legislative  acts.  The 
whole  time  of  the  legislature  would  be  thus  consumed; 
its  acts  would  be  endless;  the  thing  would  be  utterly  im- 
practicable. Hence  the  necessity  of  the  delegation  of 
some  of  this  power  to  cities  and  other  municipal  corpo- 
rations, and  to  counties,  districts  or  townships.  They  are 
parts  of  the  state  government  for  this  purpose.  They 
represent  the  state  in  making  and  enforcing  laws  proper 
and  appropriate  to  execute  the  functions  assigned  to  them 
as  agencies  of  the  state  in  the  administration  of  govern- 
ment. The  delegation  of  authority  to  make  and  enforce 
such  laws  is  entirely  within  the  competency  of  the  legis- 
lature, provided  the  delegation  empowers  such  municipali- 
ties and  other  subdivisions  of  the  state  to  exercise  only 
such  functions  as  are  appropriate  to  them.  In  such  case 
no  one  who  is  affected  by  the  ordinances  of  such  munici- 
pal corporations  or  counties,  or  their  enforcement,  can 

»7  Chicago,  etc.,  Co.  v.  People,  181  111.  270;  Consol.  Coal  Co.  v.  Peo- 
ple, 186  111.  134. 

»» People  v.  Harper,  91  111.  357. 


212  RIGHTS    AND    PRIVILEGES    UNDER 

complain  that  he  is  deprived  of  his  property  or  liberty 
contrary  to  the  Constitution  without  due  process  of  law." 

Municipal  Ordinances,  to  be  valid  as  an  exercise  of  police 
power,  are  presumed  to  be  reasonable  and  necessary,  and 
to  make  them  invalid,  he  who  asserts  that  they  are  not 
a  reasonable  exercise  of  the  power,  must  show  it;  but  if 
unreasonable  or  oppressive  and  destructive  of  private 
right,  and  such  ordinances  do  not  reasonably  tend  to  car- 
ry out  the  purposes  of  the  municipal  corporation,  for 
which  it  exists,  do  not  tend  in  any  degree  to  execute  its 
lawful  functions,  the  courts  may  hold  such  ordinances 
void.100 

Municipal  Corporations  can  not  Delegate  Their  Power. — 
Whilst  a  state  may,  in  certain  cases,  as  just  shown,  confer 
on  municipal  corporations,  and  other  subdivisions  of  the 
state,  power  to  enact  and  enforce  ordinances  and  resolu- 
tions within  the  scope  of  their  assigned  authority,  they 
can  not  again  delegate  to  any  of  their  officers  or  others 
such  powers  as  are  legislative  in  their  nature.  Here  ap- 
plies the  maxim,  Delegata  potestas  non  potest  delegari, 
delegated  power  can  not  be  redelegated.  The  municipal^ 
ity  may  commit  to  certain  officers  the  performance  of 
mere  ministerial  functions,  or  judicial  functions  in  the 
enforcement  of  its  laws ;  but  it  can  not  delegate  the  power 
to  make  law.  The  powers  of  a  municipal  corporation 

»9  Walker  v.  Jameson,  140  Ind.  591,  49  Am.  St.  R.  222;  Town 
V.  Davis,  40  W.  Va.  464;  32  Am.  &  Eng.  Corp.  Gas.  374. 

iao  Town  v.  Davis,  40  W.  Va.  464 ;  Teass  v.  St.  Albans,  38  W.  Va. 
1;  Mayor  v.  Dry  Dock,  133  N.  Y.  104,  28  Am.  St.  R.  609;  Note 
34  Am.  Dec.  633;  Steffy  v.  Monroe,  41  Am.  St.  R.  436;  Noel  v.  People, 
187  111.  587. 


THE     FOURTEENTH     AMENDMENT.  213 

can  not  be  exercised  vicariously.101  Such  an  ordinance 
would  not  be  due  process. 

Screens  before  Saloon  Windows — Ordinances  Requiring 
Their  Removal  Held  Void.102 

Cigarettes. — An  act  forbidding  the  sale  of  cigarettes 
made  in  or  out  of  the  state  is  valid.103  This  legislation  is 
based  on  the  police  power  of  the  state  to  protect  and  pre- 
serve the  public  health.  If  the  act  had  made  the  sale  of  ciga- 
rettes manufactured  outside  of  the  state,  in  original  pack- 
ages illegal,  it  would  likely  be  void  under  the  commerce 
clause. 

"Later  I  observe  that  the  Supreme  Court,  in  November^ 
1900,  in  Austin  v.  Tennessee,  holds  that  the  Tennessee 
act  forbidding  sale  of  cigarettes  wherever  made  valid,  and 
that  the  small  packages  of  cigarettes,  about  two  by  four 
inches,  loosely  thrown  into  baskets  uncovered,  brought 
from  another  state,  were  not  original  packages." 

Ordinance  against  Collecting  and  Storing  Old  Rags  and 
Paper  in  thickly  settled  parts  of  a  city  held  a  valid  exercise 
of  police  power  for  the  public  health.104 

City  Sanitary  Regulations. — Under  principles  above 
stated  municipal  corporations  have  unquestionable  power 
to  make  any  reasonable  sanitary  regulation,  and  declare 
things  public  nuisances,  if  essentially  so  in  nature,  and 
abate  them.  It  can  require  householders  to  store  garbage 

101  Richards  v.  Clarksburg,  30  W.  Va.  491,  20  Am.  &  Eng.  Corp. 
Cas.   Ill;     City  v.   Trotter,   32  Am.    &    Eng.   Corp.   Cas.   372,   and 
full  note. 

102  Steffy  v.  Monroe,  41  Am.  St.  R.  436. 

103  Austin  v.  State,  101  Tenn.  563,  70  Am.  St.  R.  703,  179  U.  S: 
343. 

104  Commonwealth  v.  Hubley,  172  Mass.  58,  70  Am.  St.  R.  242. 


214  RIGHTS    AND    PRIVILEGES    UNDER 

in  proper  places  and  in  proper  receptacles  convenient  for 
removal,  so  as  not  to  breed  disease  or  offend  the  public.105 

Hours  of  Labor  in  Mines. — A  statute  limiting  hours  of 
labor  in  mines  was  held  invalid,  because  not  an  act  of 
police  to  protect  the  health  of  the  public  at  large,  but 
only  miners.106  How  do  these  cases  harmonize  with  Hoi- 
den  v.  Hardy?107  Such  a  law  was  held  valid  in  an- 
other case.108 

Barbers  Closing  Sunday.— An  act  requiring  barbers  to 
close  their  places  of  business  on  Sunday  has  been  held 
to  be  not  contrary  to  the  Fourteenth  Amendment.109 
Whilst  the  cases  above  so  hold,  yet  I  observe  that  similar 
legislation  has  been  held  not  constitutional.110  An  act 
prohibiting  barbers  from  keeping  open  their  bathrooms 
on  Sunday  was  held  unconstitutional,  for  the  reason  that 
it  applied  to  no  one  else,  and  denied  to  the  barbers  equal- 
ity before  the  law,  and  was  class  legislation.111 

Laundries. — An  ordinance  regulating  laundries  violates 
the  Fourteenth  Amendment,  if  it  confers  on  municipal 
authorities  arbitrary  power,  at  their  own  will,  without 
regard  to  discretion  in  a  legal  sense,  to  give  or  withhold 

105  Walker  v.  Jameson,  140  Ind.  591,  49  Am.  St.  R.  222. 

106  ln  re  Morgan   (Colo.),  58  Pac.  1071;  In  re  Eight  Hour  Labor 
Bill,  21   Colo.  29;   Low    v.  Rees  Printing  Co.  41  Neb.   127.      (Full 
discussion)  ;   Ritchie  v.  People,  154  111.  98,  29  L.  R.  A.  79. 

107169  U.   S.   366;   and  Petit  v.  Minnesota,   177  U.  JS.   164. 

108  Short  v.  Bullion,  45  L.  R.  A.  603. 

io»  Petit  v.  Minnesota,  177  U.  S.  164;  20  Sup.  Ct.  666;  People 
v.  Bellet,  99  Mich.  151,  57  N.  W.  1094,  22  L.  R.  A.  696;  People  v. 
Havnor,  149  N.  Y.  195,  31  L.  R.  A.  689;  Judefind  v.  Maryland,  22 
L.  R.  A.  721;  Breyer  v.  State,  102  Tenn.  103.  See  Hennington  v. 
Georgia,  163  U.  S.  299. 

no  Eden  v.  People,  161,  111.  296,  32  L.  R.  A.  659. 

mRagio  v.  State,  86  Tenn.  272. 


THE    FOURTEENTH     AMENDMENT.  215 

consent,  to  carry  on  laundries,  as  to  persons  or  places, 
without  regard  to  the  competency  of  the  person  or  pro- 
priety of  the  place.  Administration  of  an  ordinance  for 
carrying  on  lawful  business  violates  said  amendment  if  it 
makes  arbitrary  and  unjust  discrimination  founded  on 
race  between  persons  otherwise  in  similar  circumstan- 
ces.112 But  an  ordinance  requiring  laundries  to  be  oper- 
ated only  between  certain  hours  in  certain  districts  was 
held  valid.  It  was  said  that  it  was  no  objection  to  the 
ordinance  that  other  business  might  be  carried  on  with- 
in the  same  hours. 11S 

Stated  Period  for  Payment  of  Wages. — An  act  requiring 
the  payment  of  wages  weekly  was  held  valid  as  an  act  of 
police  by  an  opinion  of  all  the  Massachusetts  supreme 
judges.114  An  act  requiring  corporation  to  pay  wages 
monthly  was  likewise  held  valid.115 

Nuisance. — Property  may  be  destroyed.  The  powers 
of  a  municipal  corporation  for  the  abatement  of  public 
nuisances  are  very  large.  We  may  say  that  all  muncipal 
corporations  are  vested  with  such  power  under  state  stat- 
utes. They  are  more  essential  to  municipal  corporations 
than  to  other  agencies  of  the  government.  The  good  or- 
der, safety,  health,  morals,  growth  and  general  well-being 
of  cities  and  towns  could  not  be  protected,  promoted  or  se- 
cured without  this  great  power.  Even  without  statute  a 

ii2Yick  Wo  v.  Hopkins,  118  U.  S.  356:  Soon  Hing  v.  Crowley, 
113  U.  S.  703;  7  Am.  &  Eng.  Corp.  Cas.  646;  Ex  parte  Sing  Lee, 
31  Am.  St.  R.  218.  24  L.  R.  A.  195. 

ii3Barbier  v.  Connolly,  113  U.  S.  27,  7  Am.  &  Eng.  Corp.  Gas. 
640;  Soon  Hing  v.  Crowley,  113  U.  S.  703,  7  Am.  &  Eng.  Corp.  Caa. 
646. 

in  163   Mass.    589. 

us  Skinner   v.   Garnet.   J)0   Fed.   735. 


216  RIGHTS    AND    PRIVILEGES    UNDER 

town  may  abate  a  public  nuisance;  but  the  power  is  almost 
universally  in  words  conferred  by  statute.  A  town  may 
abate  a  public  nuisance  pursuant  to  an  order  of  its  coun- 
cil, without  recourse  to  any  judicial  proceeding  for  the 
purpose,  and  this  is  due  process  of  law  warranted  through 
centuries  by  the  police  power,  and  therefore  no  violation 
of  the  Fourteenth  Amendment.  And,  if  necessary  for 
the  abatement  or  removal  of  the  nuisance,  the  town  may 
destroy  the  thing  which  creates  such  nuisance,  and  it  is 
not  a  taking  of  property  without  due  process  of  law.^16 
The  property  constituting  the  nuisance  must  not  be  de- 
stroyed further  than  necessary.  The  summary  proceed- 
ing here  spoken  of  is  warranted  by  law,  and  the  party 
is  not  entitled  to  a  jury  in  it.117  Whilst  this  power  of 
summary  abatement  without  judge  or  jury  exists  in  a 
municipal  corporation,  for  prudential  reasons  the  city 
or  town  may  prefer  to  appeal  to  a  court  of  justice  for 
the  abatement  of  a  public  nuisance,  and  it  is  often  the 
better  course.  If  the  nuisance  is  not  a  plain  nuisance  per 
se,  or  if  there  be  reasonable  question  whether  it  is  an  abat- 
able nuisance,  or  where  no  circumstances  of  emergency 
call  for  hasty  action;  in  such  cases,  it  is  the  judicious 
course,  and,  as  elsewhere  stated  (p.  147),  a  court  of  equity 

neMugler  v.  Kansas,  123  U.  S.  623;  Lawton  v.  Steele,  152  U.  S. 
133;  Bank  v.  Sarlis,  28  Am.  St.  R.  185;  Cheek  v.  City,  4  Am. 
&  Eng.  Corp.  Gas.  512;  City  of  Cleveland  v.  C.  C.  &  St.  L.  Co. 
93  Fed.  119;  Easton  R.  R.  Co.  v.  Easton,  133  Pa.  505;  Cook  v. 
Harris,  61  N.  Y.  448;  Baumgartner  v.  Hasty,  8  Am.  &  Eng.  Corp. 
Cas.  353. 

117  Hart  v.  Mayor,  9  Wend.  571,  24  Am.  D.  165;  Ex  parte  Keeler, 
55  Am.  St.  R.  785. 


TUB    FOURTEENTH     AMENDMENT.  217 

is  open  for  relief.118  If  a  dwelling,  it  must  do  so.119 
The  city  or  town  may  cause  an  indictment  to  be  found, 
and  upon  it  judgment  of  abatement  may  be  rendered.120 
But  it  must  be  remembered,  as  elsewhere  stated  (p.  173), 
that  a  city  or  town  council  can  not,  by  its  mere  declaration 
that  a  thing  is  a  public  nuisance,  make  a  nuisance  of 
that  which  is  not  essentially  such.121  The  question  of 
nuisance  or  no  nuisance  is  one  for  judicial  review. 

Fencing  Railroads. — Acts  requiring  this  are  valid  acts 
of  police,  not  depriving  the  companies  of  the  equal  pro- 
tection of  the  law  secured  by  the  Fourteenth  Amendment. 
They  are  intended  not  only  to  save  stock  from  being  de- 
stroyed, but  also  to  save  passengers  from  accident.122 
This  case  holds  valid  an  act  giving  land-owner  pay  for 
watching  stock  to  keep  it  off  the  track. 

An  act  making  railroad  companies  liable  for  double 
the  value  of  stock  killed  at  a  point  where  the  company 
ought  to  fence  the  track,  but  does  not,  was  held  not  re- 
pugnant to  the  Fourteenth  Amendment.123 

Slaughter-Houses. — As  elsewhere  stated  (p.  82),  the 
police  power  of  a  state  is  so  great  that  an  act  of  the  leg- 
islature of  Louisiana  creating  a  corporation  and  giving 

nsWeston  v.  Ralston,  47  W.  Va.  36  S.  E.  446;  Cheek  v.  City 
of  Aurora,  4  Am.  &  Eng.  Corp.  Gas.  652;  Ralston  v.  Weston,  46 
W.  Va.  544,  33  S.  E.  331 ;  Woodward  v.  Seely,  50  Am.  D.  453,  cit- 
ing 1  Pom.  Eq.  Sec.  248  note,  2  Story  Eq.  Sec.  859. 

ii»Teass  v.  St.  Albans,  38  W.  Va.  1. 

120  Denver   v.   Mullen,   4   Am.   &   Eng.   Corp.    Cas.    304;    City   of 
Cleveland  v.   R.   R.   Co.   93  Fed.   119. 

121  North  Chicago  Co.  v.  Lake  View,  2  Am.  &  Eng.  Corp.  Cas.  6 ; 
Town  v.   Davis,  40  W.  Va.   464;   Arkadelphia  v.  Clark,  27   Am.  & 
Eng.  Corp.  Cas.  586;  Teass  v.  St.  Albans,  38  W.  Va.  1. 

122  Minneapolis  Co.  v.  Emmons,  149  U.  S.  364. 

123  Minneapolis  v.  Beckwith,  129  U.  S.  26. 


218  RIGHTS    AND    PRIVILEGES    UNDER 

it  a  monopoly  for  twenty-five  years  to  maintain  slaughter- 
houses, stockyards  and  landings  for  cattle,  in  three  par- 
ishes, covering  the  city  of  Xew  Orleans,  and  prohibiting 
all  others  from  doing  so  within  that  district,  and  re- 
quiring all  cattle  intended  for  sale  to  be  brought  there, 
was  held  not  contrary  to  the  Fourteenth  Amendment.12 

Stopping  Railroad  Trains. — An  act  requiring  railroad 
trains  to  stop  at  county  seats  long  enough  to  take  up  and 
discharge  passengers  was  held  valid,  though  the  railroad 
was  engaged  in  interstate  commerce.125 

Dogs. — A  statute  enacting  that  dogs  not  on  the  assess- 
ment roll  are  not  entitled  to  protection,  and  that  for  kill- 
ing them  the  owner  can  not  recover  beyond  their  value 
specified  in  the  last  assessment  of  them,  and  that  for  kill- 
ing unruly  dogs,  and  those  with  no  collar  on,  and  those 
not  assessed,  was  held  not  to  violate  the  Fourteenth 
Amendment  as  destroying  property  without  due  pro- 
cess.126 The  opinion  contains  a  fine  discussion  of  the 
right  of  property  in  dogs,  and  the  extent  of  police  power 
over  them. 

Oleomargarine. — This  much-abused  article  of  food  is 
much  better  than  it  has  been  represented  to  be.  It  is  set- 
tled beyond  question  that  it  is  a  legitimate,  merchant- 
able article  of  commerce,  and  that  a  state  can  not  inter- 
dict its  transportation  into  it  from  points  outside  of  it, 
and  the  sale  of  the  article  in  original  packages.127 

124  Slaughter  House  Cases,  16  Wall.  36. 

i25Gladson  v.  Minnesota,  166  U.  S.  427;  Lake  Shore  v.  Ohio, 
173  U.  S.  285;  Wisconsin,  etc.,  Co.  v.  Jacobson,  179  U.  S.  287. 

126  SenteU  v.  N.  Orleans,  166  U.  S.  698. 

127  Schollenberger  v.   Pennsylvania,    171   U.   S.    1;    Fox  v.   State, 
89  Md.  381. 


THE    FOURTEENTH     AMENDMENT.  219 

This  is  because  of  the  commerce  clause,  not  the  Four- 
teenth Amendment.*  But  in  Powell  v.  Pennsylvania  128 
it  was  held  that  the  Fourteenth  Amendment  was  not  "de- 
signed to  interfere  with  the  exercise  of  the  police  power 
by  the  state  for  the  protection  of  health,  the  prevention 
of  fraud,  and  the  preservation  of  public  morals,"  and  that 
an  act  prohibiting  the  manufacture  out  of  oleaginous 
substances  other  than  unadulterated  cream  or  milk,  of 
any  article  designed  to  take  the  place  of  butter,  or  any 
imitation  or  adulterated  butter  or  cheese,  or  selling  it,  or 
offering  it  for  sale,  was  a  lawful  police  act  to  protect  pub- 
lic health,  neither  denying  equal  protection  of  law,  nor 
depriving  of  property  without  due  process  of  law  con- 
trary to  the  Fourteenth  Amendment.  In  Plumley  v.  Mas- 
sachusetts 129  was  involved  an  act  to  "prevent  deception 
and  fraud  in  the  manufacture  and  sale  of  imitation  but- 
ter," in  its  application  to  the  sale  of  oleomargarine  colored 
so  as  to  cause  it  to  look  like  yellow  cream  butter,  and 
the  act  was  held  to  be  a  valid  exercise  of  police  power  on 
the  theory  that  it  was  to  prevent  fraud  in  the  sale  of  a 
false  article.  The  case  was  based  on  the  prevention  of 
deception  in  selling  an  adulterated  article,  and  it  con- 
tains an  able  discussion  of  the  police  power.  On  this 
theory  goes  the  cases  of  State  v.  Myers,  and  Wright  v. 
State.130  But  I  do  not  understand  that  legislation  to  pre- 
vent the  sale  of  oleomargarine  in  its  true  state  and  ap- 
pearance, without  anything  connected  with  it  to  deceive 
as  to  its  true  character,  would  be  constitutional. 

i2s  127  U.  S.  678,  23  Am.  &  Eng.  Corp.  Cas.  18. 
i2»155  U.  S.  461. 

13042  W.  Va.  822,  35  L.  R.  A.  844;   88  Md.  436.     See  State  v. 
Sherwood,  83  N.  W.  527 ;  Cook  v.  State,  110  Ala.  40. 


220  RIGHTS    AND    PRIVILEGES    U\D1JJI 

The  definition  of  oleomargarine  as  a  legitimate  article 
of  interstate  commerce,  as  given  in  the  Act  of  Congress, 
August  2,  1886,  is  an  article  "made  in  imitation  and  sem- 
blance of  butter."  As  such  it  is  a  lawful  article  of  com- 
merce, and  no  state  can  prohibit  its  introduction  or  sale, 
as  held  in  Schollenberger  v.  Pennsylvania,  171  U.  S.  1. 
But  the  state  may  prohibit  the  manufacture  of  it  with- 
in the  state  or  prohibit  the  sale  within  it  of  such  oleo- 
margarine as  is  manufactured  within  the  state.  Fox  v. 
State,  89  Md.,  381,  73  Am.  St.  194.  Still,  the  state  may 
adopt  police  regulations  to  prevent  the  fraudulent  sale 
of  oleomargarine  as  genuine  butter. 

Protection  of  Servants. — The  State  of  Arkansas  passed 
an  act  providing  that  if  a  corporation  or  person  operating 
a  railroad  or  bridge,  or  constructing  works,  discharged, 
with  or  without  cause,  or  refused  to  further  employ  an 
employee,  his  unpaid  wages  should  be  due  at  discharge 
or  refusal  to  employ,  and  that  if  such  wages  should  not 
be  paid,  imposing  as  a  penalty  that  the  wages  should  con- 
tinue for  sixty  days  at  the  same  rate,  and  giving  action 
for  discharge  without  cause.  The  act  was  held  to  be  con- 
sistent with  the  United  States  Constitution,  and  that  it 
did  not  deny  the  operator  of  the  railroad  the  equal  pro- 
tection of  the  law.131 

Protection  of  Fish. — A  state  may  preserve  fish  in  its 
streams  from  extinction  by  prohibiting  exhausting  meth- 
ods of  fishing,  and  may  authorize  the  destruction  by  any- 
one of  nets  set  in  violation  of  law,  and  such  legislation 
does  not  deprive  one  of  property  without  clue  process  of 

131  St.  Louis  Co.  v.  Hall,  173  U.  S.  404. 


THE    FOURTEENTH     AMENDMENT.  221 

law.132  The  legislature  may  limit  the  season  for  catch- 
ing fish,  and  the  manner  of  catching  them,  and  may  make 
it  an  offense  to  have  certain  nets  in  possession.133 

Water-Rent  Lien. — An  act  making  water  rent  of  a  city 
a  lien  on  land  prior  to  all  incumbrances,  like  taxes,  does 
not  violate  the  Fourteenth  Amendment  in  giving  a  lien 
prior  to  mortgages  in  existence  before  the  furnishing  of 
the  water,  as  the  law  prior  to  the  mortgage  so  provided, 
ami  the  mortagee  took  his  rights  with  an  eye  to  that  law, 
in  legal  contemplation.134 

Pollution  of  Streams. — Acts  to  prevent  the  pollution  of 
streams  by  the  deposit  of  sawdust  or  other  vitiating  arti- 
cle therein,  spoiling  the  water  for  domestic  and  other 
uses  necessary  to  society,  do  not  violate  the  Fourteenth 
Amendment.135 

Removal  of  Railroad  Grade  Crossings. — Crossings  of  pub- 
lic highways  over  railroads  on  a  level  grade  with  the 
railroad  are  exceedingly  dangerous  to  the  lives  and  limbs 
of  those  traveling  the  common  highway,  as  well  as  to  the 
employees,  passengers  and  property  on  the  trains  upon 
the  railroad,  and  legislation  calculated  to  save  life  at 
such  crossings,  reasonably  calculated  for  such  purposes, 
is  beneficial  to  both  interests,  and  is  valid  under  the  po- 
lice power.  Even  an  act  requiring  the  removal  of  such 
grade  crossings  by  a  railroad  company  at  its  expense  has 
!><•« MI  held  consistent  with  the  Fourteenth  Amendment. 
Condemnation  of  property  for  the  purpose,  is  not  taking 

132  Lawton  v.  Steele,  152  U.  S.  133. 
iss  state  v.  Lewis  (Ind.),  20  L.  R.  A.  52. 
is*  Provident  v.  Mayor,  113  U.  S.  506. 

'  •"••-•  State  v.  Griffin,  41  L.  R.  A.  177.  See  State  v.  Wheeler,  44  N.  J. 
L.  88. 


222  RIGHTS    AND    PRIVILEGES    UNDER 

of  property  without  due  process,  though,  tracks  be  in- 
creased at  expense  of  city.136 

Eight-Hour  Labor  Law. — A  statute  fixing  a  day's  labor 
in  underground  mines  or  workings  at  eight  hours,  except 
in  emergency,  where  life  or  property  is  in  imminent  dan- 
ger, and  imposing  a  penalty  for  violation  of  the  law,  was 
held  a  valid  exercise  of  the  police  power  not  violative 
of  the  Fourteenth  Amendment  by  denying  equal  protec- 
tion of  the  law,  or  depriving  of  property  without  due  pro- 
cess of  law.137  Cases  holding  contra.138 

Waste  of  Natural  Gas. — Natural  gas  is  a  gift  of  nature 
for  the  comfort,  convenience  and  welfare  of  man.  It  be- 
hooves all  to  preserve  it  from  waste,  as  it  is  believed  to 
be,  or  perhaps  known  to  be,  stored  in  limited  quantities 
within  the  earth,  and  therefore  exhaustible.  The  power 
of  the  legislature  to  prevent  its  waste  would  seem,  there- 
fore, to  be  clear,  and  it  has  accordingly  been  held  that 
an  act  prohibiting  its  use  for  illumination  in  flambeau- 
lights  is  no  violation  of  the  Fourteenth  Amendment  in 
depriving  of  liberty,  property  or  equality  before  the 
law.139 

Food  Adulteration,  Bad  Milk,  etc. — Under  the  police 
power  of  the  state,  as  elsewhere  in  this  work  defined,  it 
is  very  plain  that  the  state  may  protect  the  public  health, 
comfort  and  safety  by  prohibiting  the  adulteration  of  arti- 

ise  New  York,  etc.,  Co.  v.  Bristol,  151  U.  S.  556;  Wheeler  v.  R.  R. 
178  U.  S.  321. 

isiHolden  v.  Hardy,  169  U.  S.  366;  Short  v.  Bullion  (Utah), 
45  L.  R.  A.  603. 

138  City  v.  Smyth,  60  Pac.  1120;  Re  Morgan,  58  Pac.  1071  (full)  ; 
Low  v.  Rees  Printing  Co.  41  Neb.  127. 

is»Townsend  v.  State,  147  Ind.  624,  62  Am.  St.  R.  477. 


TEE    FOURTEENTH     AMENDMENT. 

cles  of  food,  or  the  furnishing  of  inferior  and  deleterious 
articles  hurtful  to  health  and  destructive  of  life,  and  may, 
for  the  prevention  of  imposition  and  fraud,  regulate  the 
sale  of  such  articles.  The  Fourteenth  Amendment  in 
no  wise  prevents  such  salutary  legislation,  and  the  legis- 
lation may  cover  a  very  wide  scope.  Of  the  necessity  of 
legislation  upon  this  matter  the  legislature  is  almost  the 
sole  judge,  with  the  proviso  that  its  action  is  subject  to 
judicial  review.140  As  an  instance  of  the  exercise  of  this 
police  power,  an  act  requiring  milkmen  to  register  their 
stock  with  the  sanitary  board  of  a  city,  and  prohibiting 
the  sale  of  milk  from  unsanitary  places,  was  held  to  be 
consistent  with  the  Fourteenth  Amendment.141  So  an  act 
prohibiting  anyone  from  having  in  his  possession  adul- 
terated milk  with  intent  to  sell  it,  was  held  to  be  consti- 
tutional in  State  v.  Smith.142 

Adulterated  articles  of  food  may  be  destroyed  by  a  pub- 
lic inspector  acting  under  authority  of  state  legisla- 
tion.143 

It  will  not  do  to  say  that  such  legislation  as  this,  though 
sometimes  severe,  can  be  held  to  be  unconstitutional,  as 
being  destructive  of  liberty,  property  or  equality  before 
the  law,  because  ancient  common  law  fully  authorized 
indictment  for  such  adulteration,  made  the  thing  unlaw- 
ful; and  statutes  as  far  back  as  51  Henry  III,  pro- 
hibited the  sale  of  corrupted  wine  or  unwholesome 
flesh.144  Thus,  long  before  the  advent  of  the  Fourteenth 

1*0  State  v.  Campbell,  64  N.  H.  402,  23  Am.  &  Eng.  Corp.  Cas.  12. 
1*1  State  v.  Broadbelt  (Md.),  45  L.  R.  A.  433;  89  Md.  — ,  73  Am. 
St.  R.  201. 

1*2  14  R.  I.  100,  51  Am.  R.  344;  State  v.  Schlenker,  84  N.  W.  698. 
1*3  Deems  v.  Baltimore,  80  Md.  164,  26  L.  R.  A.  541. 
i**4  Bl.  Com.   162. 


224  RIGHTS    AND    PRIVILEGES    UNDER 

Amendment  this  adulteration  of  food  was  condemned 
by  law  as  an  evil,  and  legislation  in  England  and  Amer- 
ica was  widespread  for  its  prevention;  and,  as  frequently 
stated  in  this  work,  what  was  due  process  of  law  when 
this  amendment  came  continues  such  under  it.  Accus- 
tomed, ordinary  legislation  and  process  for  remedy  of 
acknowledged  evils  are  not  prohibited  by  it. 

Ardent  Spirits.  —  The  state  or  its  subordinate  agencies 
may  grant  or  refuse  license  to  sell  ardent  spirits,  as  it 
chooses.  Municipal  corporations  may  grant  or  refuse  just 
as  enabling  statutes  authorize.145  The  license  may  be 
taxed  as  the  state  or  municipality  chooses  for  their  sev- 
eral purposes.146  A  city  or  town  may  limit  the  number 
of  saloons  in  it.147 

Diseased  Fruit  Trees  may  be  destroyed  under  authority 
of  a  statute,  without  judicial  inquiry  and  compensation, 
if  they  have  disease,  such  as  "yellows"  in  peach  trees, 
spreading  such  disease.148 

Poisons.  —  Statutes  forbidding  anyone  other  than  phy- 
sicians and  pharmacists  from  having  opium  or  other  poi- 
sons in  possession  are  constitutional.149  The  basis  of 
this  legislation  is  the  danger  to  the  public.  The  health 
of  the  public  is  the  supreme  law.  To  it  individual  right 
must  often  yield.  There  is  no  state  that  has  not  legisla- 
tion to  regulate  and  restrict  the  keeping  and  sale  of  poi- 


v.  Christensen,  137  U.  S.  86,  34  Am.  &  Eng.  Corp. 
Gas.  160;  Mugler  v.  Kansas,  123  U.  S.  623,  18  Am.  &  Eng.  Corp. 
Cas.  614. 

i46Giozza  v.  Tiernan,   148  U.   S.   657. 

nTDecie  v.  Brown,   167  Mass.  290. 

"8  state  v.  Main,  69  Conn.   123,   36  L.  R.  A.   623. 

i*»  Ex  parte  Mon  Luck,  29  Ore.  421,  44  Pac.  693,  32  L.  R.  A.  738. 


TUB    FOURTEENTH     AMENDMENT.  225 

son.  The  police  power  plainly  covers  it,  and  did  so  long 
before  the  date  of  the  Fourteenth  Amendment.  When 
that  amendment  came.it  found  this  particular  power  in 
full  life.150 

Compulsory  Vaccination. — Legislation  or  ordinance  re- 
quiring it  as  a  prerequisite  to  attend  the  public  schools, 
in  the  absence  of  the  prevalence  of  smallpox  or  imminent 
danger  of  it,  has  been  held  not  a  valid  exercise  of  the 
police  power.151  But  the  presence  of  danger  of  the  dis- 
ease has  been  held  in  another  case  not  necessary  to  au- 
thorize a  school  board  to  require  vaccination.  Its  order 
to  that  effect  was  held  not  contrary  to  the  Fourteenth 
Amendment.152 

Beating  Drums  on  the  Street. — A  town  ordinance  against 
this  as  a  public  nuisance  was  held  valid.153 

Municipal  Liability  for  Mobs. — A  municipal  corporation 
is  not  liable,  by  common  law,  for  damage  to  persons  and 
property  done  by  a  mob;  but  in  some  states  legislation 
makes  them  so  liable.  Such  legislation  is  justified  by 
that  large  power  which  the  state  legislature  may  exer- 
cise to  control,  regulate  and  govern  cities  and  towns, 
and  it  has  been  held  valid.154  If  the  right  to  lay  enough 
taxes  to  pay  the  judgment  is  denied  by  the  legislation, 
the  case  secondly  cited  shows  that  the  owner  of  the  judg- 
ment is  not  deprived  of  his  property  contrary  to  the 

iso  gee  note  as  to  keeping  dangerous  property,  20  L.  R.  A.  52 ; 
State  v.  Hay,  35  S.  E.  459 ;  Morris  v.  City,  30  S.  E.  850,  42  L.  R.  A. 
175. 

isi  Potts  v.  Brown,  107  111.  67. 

"zBissell  v.  Davisson    (Conn.),  29  L.  R.  A.  251. 

iss  Re  Flaherty   (jComi.),  27  L.  R.  A.  529. 

1*4  City  v.  Manhattan,  178  111.  372;  State  v.  Mayor,  109  U.  S. 
285:  Board  v.  Caldwell  (Ohio,  1900)  :  Champaign  Co.  v.  Church,  62 
Ohio  St.  318. 


226  R1GHT8    AND    PRIVILEGES    UNDER 

Fourteenth  Amendment.  There  need  be  no  jury  to  fix 
mere  amount  of  damages,  as  held  in  last-cited  case,  if 
the  main  fact  is  found  by  jury. 

Cemetery  Lots  and  Disinterments. — Owners  of  lots  in 
cemeteries  hold  the  lots  subject  to  the  police  power  of 
the  state,  and  interment  may  be  forbidden  therein,  and 
bodies  already  therein  interred  may  be  removed  by  au- 
thority of  the  legislature,155  It  seems  that  municipal 
corporations  have  the  like  power  without  enabling 
act.156 

City  Ordinance  against  Drumming  for  patronage  for 
hotels,  boarding  and  bath-houses,  physicians,  quacks  and 
venders  of  nostrums,  held  void  as  to  competent  physicians, 
and  as  to  hotels,  boarding  and  bath-houses,  they  being  law- 
ful business.157 

Estrays. — A  statute  authorizing  the  impounding  of  es- 
trays  is  a  long-used  common  law  proceeding,  and  statutes 
authorizing  and  regulating  it  are  sustained  by  the  police 
power,  and  do  not  violate  the  Constitution.  Municipal 
corporations  may  make  regulations  as  to  what  animals 
may  run  at  large  in  the  streets,  and  for  impounding  those 
running  at  large  in  violation  of  such  regulations  or  ordi- 
nance, without  notice  to  the  owner,  without  its  being  con- 
trary to  the  requirement  of  due  process  of  law.  The  sub- 
ject is  well  discussed  by  Judge  English  in  the  West  Vir- 
ginia  case  of  Burdett  v.  Allen.158 

IBS  Humphreys  v.  Church,  109  N.  C.  132,  13  S.  E.  793,  37  Am.  & 
Eng.  Corp.  Cas.  489. 

ise  People  v.  Pratt  (N.  Y.),  38  Am.  &  Eng.  Corp.  Cas.  201. 

is?  Thomas  v.  Hot  Springs,  34  Ark.  553;  36  Am.  R.  24. 

iss  Burdett  v.  Allen,  35  W.  Va.  347,  13  S.  E.  1012,  37  Am.  &  Eng. 
Corp.  Cas.  468;  Welch  v.  Bowen,  11  Am.  &  Eng.  Corp.  Cas.  334; 
Folmar  v.  Curtis  (Ala.),  27  Am.  &  Eng.  Corp.  Cas.  578. 


THE    FOURTEENTH     AMENDMENT.  227 

Opium  Smoking. — A  strong  and  signal  instance  of  the 
extent  of  the  police  power  is  the  sustaining  of  the  statute 
of  Washington  making  the  act  a  penal  offense.159  The 
decision  seems  to  me  to  be  questionable. 

Laundries. — The  carrying  on  of  laundries  is  a  lawful, 
reputable  and  necessary  business,  not  at  all  hurtful  to, 
but  highly  beneficial  to,  the  public,  and  of  great  public 
benefit.  In  some  cases  or  instances  they  have  been  brand- 
ed absolutely  to  be  nuisances,  perhaps  owing  to  some  lo- 
cal prejudice  against  the  Chinese,  who  are  largely  engaged 
in  this  business.  Every  person  within  the  jurisdiction  of 
the  United  States  has  liberty  to  make  a  living  in  a  law- 
ful business.  He  has  a  right  to  apply  his  labor  and  prop- 
erty to  it.  This  is  the  clearest  right,  protected  by  the 
Fourteenth  Amendment.  Laundering  is  a  lawful  busi- 
ness, and  an  ordinance  prohibiting  it  in  certain  locali- 
ties simply  because  it  was  deemed  a  nuisance  per  se  was 
held  invalid,  because  repugnant  to  the  Fourteenth  Amend- 
ment.160 This  holding  does  not  antagonize  the  decisions 
already  adverted  to  (p.  215),  holding  valid  statutes  or 
municipal  ordinances  reasonably  regulating  the  business 
of  laundering.  I  refer  here  to  ordinances  absolutely  de- 
claring the  business  a  nuisance. 

Removal  of  Diseased  Persons. — A  statute  or  city  ordi- 
nance authorizing  persons  affected  with  smallpox  or  other 
contagious  or  infectious  disease  to  be  removed  to  a  sepa- 
rate house  apart  from  the  community,  called  a  "pest- 
house,"  or  "lazaretto,"  does  not  violate  the  Fourteenth 
Amendment  in  depriving  of  liberty.  Nor  does  the  quar- 

159  Territory  v.  Ah  Lira,  9  L.  R.  A.  395. 
i«o  in  re  Hong  Wah,  82  Fed.  623. 


228  RIGHTS    AND    PRIVILEGES    UNDER 

antiniug  of  such  persons  within  their  own  homes,  though 
this  prevents  the  exercise  of  the  right  of  locomotion. 
Neither  does  a  quarantine  against  the  entrance  into  a  city 
or  town  of  any  person,  diseased  or  not,  coming  from  a 
place  infected  with  smallpox  or  dangerous  contagious  dis- 
ease. Seemingly  this  is  a  great  invasion  of  natural,  per- 
sonal right;  but  it  springs  from  the  maxim,  Solus  populi 
suprema  lex  est.  Necessity,  the  demand  of  self -preser- 
vation, justify  the  exercise  of  this  power.  It  is  based 
on  the  police  power,  which,  as  held  in  Barbier  v.  Con- 
nolly,161 is  not  impaired  by  the  amendment,  because  it 
rests  on  that  maxim  above  quoted,  which  is  of  the  high- 
est import  and  unquestioned  authority.  But  this  doc- 
trine applies  only  to  persons  having  contagious  disease,  or 
infectious  disease.  If  this  is  not  the  case,  no  one,  though 
diseased  otherwise,  can  be  sent  to  a  hospital,  though  for 
medical  aid  and  humanity,  unless  he  consents.162 

Act  Requiring  Locomotive  Engineers  to  be  examined  as 
to  capacity  to  distinguish  between  color  signals,  and  es- 
tablishing a  board  therefor,  and  requiring  the  railroad 
company  to  pay  the  examination  fees,  was  held  not  to  de- 
ny equal  protection  of  the  law,  or  to  take  property  without 
due  process  of  law.163 

Removal  of  Dead  Animals. — An  ordinance  of  a  city  giv- 
ing one  person  exclusive  right  to  remove  dead  animals 
from  a  city,  not  removed  by  their  owner  in  a  given  time. 

"I  113  U.  S.  27,  7  Am.  &  Eng.  Corp.  Cas.  640. 

162  Tiedman,  Police  Power,  Sec.  42 ;  Harrison  v.  Baltimore,  1  Gill. 
264;  Haverty  v.  Bass,  66  Me.  71. 

163  Nashville  Co.  v.  Alabama,  128  U.  S.  96. 


THE    FOURTEENTH     AMENDMENT.  229 

does  not  deprive  the  owner  of  property  without  due  pro- 


cess.164 


Railroad  Speed — It  seems  that  municipal  corporations, 
under  police  power,  to  save  life  and  property,  may  reg- 
ulate the  speed  of  railroad  trains  within  their  limits,  and 
such  regulation  has  been  held  not  obnoxious  to  the  Four- 
teenth Amendment,  as  impairing  a  vested  right  of  the 
railroad  company.165 

Privies  and  Water-Closets. — A  city  or  town  may  adopt 
these  principles  is,  that  every  state  possesses  exclusive 
reasonable  regulations  controlling  them  for  the  public 
health  and  comfort,  may  compel  connection  with  sewers, 
and  may  prohibit  privies  from  being  located  near  win- 
dows and  doors  of  a  dwelling,  and  may  fill  them  up  or 
destroy  them,  without  hearing,  consistently  with  the  Con- 
stitution under  the  police  power.166  The  last  case  is  a  val- 
uable discussion  of  police  power. 

Railroads  in  Street. — A  strong  instance  of  the  force  of 
municipal  police  power  is  furnished  by  the  case  of  Rail- 
road Company  v.  Richmond,167  where  a  city  ordinance 
forbade  one  railroad  company  to  run  cars  by  steam  on  a 
part  of  only  one  street,  and  it  was  held  valid,  and  that 
it  did  not  deprive  that  company  of  property  without  due 
process,  and  that  it  did  not  deny  equal  protection  of  the 
law.  Though  the  ordinance  applied  to  only  one  road  and 
one  street,  yet  the  court  said  that  this  street  occupied  by 
this  railroad  might  be  very  different  from  all  others,  and 

ie*  National  Fertilizer  Co.  v.  Lambert,  48  Fed.  458. 

les  Herb  v.  Morash  (Kan.),  54  Pac.  323;  Wisconsin  Co.  v.  Jacob- 
son,  179  U.  S.  287. 

166  Comth.  v.  Roberts,  155  Mass.  281 ;  Harrington  v.  Board,  20  R. 
I.  233. 

16796  U.   S.   521. 


230  RIGHTS    AND    PRIVILEGES    UNDER 

municipal  legislation  might  exclude  that  railroad  from 
one  street,  though  not  from  all,  as  the  public  need  re- 
quired, of  which  the  city  war,  to  judge. 

Changing  Conditions  Enlarge  Police  Power. — It  must  not 
be  thought  that  this  great  police  power  is  bound  to  rec- 
ognize a  condition  or  state  of  things  existing  to-day  as 
beyond  change  at  its  hands  in  time  to  come,  when  changed 
conditions  occur  and  public  welfare  demands  alteration 
and  increased  exercise  of  police  power  in  restraint  of 
privileges  once  established.  This  increased  police  power, 
or  rather  the  extended  exercise  of  the  sleeping  police 
power,  may  affect,  nay,  may  destroy,  rights  vested,  even 
contract  rights,  under  certain  circumstances.  As  stated 
at  another  place  (p.  170),  a  business  once  harmless  and 
lawful,  vested  even  under  chartered  rights,  which  later 
becomes  hurtful  to  the  public  under  an  altered  condition 
of  things,  may  be  restricted  in  its  transactions,  or  indeed 
utterly  prohibited  under  the  action  of  state  or  municipal 
legislation  touching  it.  The  case  of  Fertilizing  Company 
v  Hyde  Park  Company168  is  a  strong  instance  to  mani- 
fest this  general  principle  of  the  law  of  police.  A  com- 
pany was  chartered  by  a  legislative  act  and  empowered 
to  make  chemicals  from  the  carcasses  of  dead  animals 
and  other  refuse  and  offal,  with  express  right  to  so  do  at 
a  place  which  was  then  a  swamp  several  miles  from  Chi- 
cago. The  company  accepted  this  charter,  spent  much 
money  in  the  erection  of  a  plant  and  was  engaged  in  its 
legitimate  corporate  business.  In  process  of  time  the 
town  of  Hyde  Park  grew  to  be  an  important  residential 

i«897  U.  S.  (7  Otto),  659. 


THE    FOURTEENTH     AMENDMENT.  231 

place.  Then  this  lawful  business  became  a  flagrant  nui- 
sance of  decided  type,  hurtful  to  the  public.  The  charter 
of  this  town  of  Hyde  Park  gave  it  power,  necessary  to  all 
cities  and  towns,  without  which  they  could  scarcely  ex- 
ist, to  abate  public  nuisances.  The  town  passed  an  or- 
dinance that  no  carcasses  or  offal  should  be  brought  into 
it  on  railroad  cars,  and  that  no  public  nuisance  should 
be  carried  on,  and  imposed  a  penalty  therefor.  This  was 
extremely  detrimental  to  the  rights  and  business  of  the 
fertilizing  company,  which  had  seated  itself  in  that  place 
when  it  was  far  removed  from  habitations,  and  only  a 
dismal  swamp,  and  the  dwellers  seated  themselves  there 
long  after  its  establishment.  We  might  say  they  sought 
proximity  to  this  nuisance  by  their  own  act.  Still,  the 
Supreme  Court  held  that  the  town  ordinance  was  a  valid 
exercise  of  the  police  power,  notwithstanding  the  charter 
rights  of  the  corporation.  The  court  fully  discusses  the 
police  power  and  the  municipal  function  to  abate  public 
nuisance.  The  court  said  also  that  the  fact  that  the  cor- 
poration had  long  exercised  its  right  would  not  protect  it 
from  the  ordinance,  because  the  business  carried  on  was 
a  public  nuisance.  The  language  of  the  court  is  but  thb 
application  of  an  old  principle:  "In  such  cases  pre- 
scription, whatever  the  length  of  time,  has  no  application. 
Every  day's  continuance  is  a  new  offense." 

Second  Sentence  after  Reversal. — Suppose  one  sen- 
tenced under  an  unconstitutional  act,  or  an  erroneous 
judgment,  takes  an  appeal  and  reverses  the  sentence ;  will 
it  harmonize  with  due  process  of  law  to  try  him  over  again 
and  resentence  him?  Suppose  even  that  he  has  served 
a  part  of  his  sentence;  can  he  be  retried  and  resentenced 


232  RIGHTS    AND    PRIVILEGES    UNDER 

for  a  full  term,  regardless  of  his  former  sentence  and  par- 
tial punishment  under  it,  if  he  procures  its  reversal  ?  I 
can  answer  that  he  can  be  retried  and  resentenced,  except 
so  far  as  some  statute  may  relieve  him.  The  former  sen- 
tence goes  for  naught.  There  is  no  second  jeopardy,  as 
he  procured  a  new  trial.  It  is  well  settled  that  when  a 
party  gets  a  new  trial  on  his  own  motion,  he  may  be 
tried  again.  It  is  consistent  with  the  demand  of  due  pro- 
cess of  law.169 

Charges  for  Use  of  Public  Sewers. — An  act  authorizing 
a  city  to  fix  charges  for  the  use  of  its  public  sewers  does 
not  deprive  those  using  them  by  draining  into  them,  of 
property  without  due  process  of  law,  though  no  hearing 
is  given  them.170 

Unlawful  Gaming. — Statutes  everywhere,  of  centuries' 
standing,  prohibit  gaining  with  cards  and  other  devices, 
and  not  only  that,  they  allow  the  loser  to  recover  back 
from  the  winner  money  lost  at  gaming,  and  they  often 
declare  contracts  or  promises  made  in  consideration  of 
gaming  to  be  void.  Do  such  statutes  infringe  upon  lib- 
erty of  civil  right  and  action,  and  right  to  contract,  in 
violation  of  the  liberty  and  property  clause  of  the  Four- 
teenth Amendment?  Do  they  infringe  upon  the  right 
of  contract?  They  do  not.  It  may  be  said  that  this 
money  won  has  become  the  property  of  the  winner  by 
contract  with  the  loser.  So  with  the  promissory  note  or 
verbal  promise.  It  would  seem  to  be  a  restraint  on  lib- 

169  Murphy  v.  Massachusetts,  177  U.  S.  155;  Trezza's  Case,  142 
U.  S.  160;  McElvaine  v.  Brush,  142  U.  S.  155;  State  v.  Crop,  44 
W.  Va.  315;  Livingston  Case,  14  Grat.  592,  606. 

ITO 56  N.  E.  1. 


TUB    FOURTEENTH     AMENDMENT.  233 

erty,  and  on  the  right  of  contract,  and  a  taking  of  prop- 
erty without  due  process  of  law.  But  under  the  police 
power  of  the  states,  long  before  the  amendment  came,  such 
statutes  were  in  vogue  for  the  promotion  of  morals.  The 
police  power  vindicates  this  stringent  legislation,  and  mu- 
nicipal ordinances  to  suppress  gaming.  Contracts  in  gam- 
ing are  made  void,  and  the  recovery  back  of  money  lost 
is  a  means  of  enforcing  the  law.171 

Usury . — What  has  just  been  said  as  to  gaming  applies 
largely  here.  Statutes  vacating  contracts  tainted  with 
usury,  and  placing  usury  under  penalty,  have  been  in 
existence  for  centuries,  have  been  approved  by  mankind, 
and  are  justified  by  the  police  power,  and  are  not  in  vio- 
lation of  the  Fourteenth  Amendment.172 

Registry  of  Voter. — An  act  requiring  such  registry  as 
a  prerequisite  to  vote  does  not  deprive  a  citizen  of  the 
United  States  of  his  privileges  contrary  to  the  Fourteenth 
Amendment.  The  state  prescribes  the  qualification  of 
voters,  and  makes  regulations  for  elections,  as  already 
stated  (p.  73).173 

Railroad  Terminal  Facilities. — An  act  compelling  a  rail- 
road company  to  admit  another  company  to  terminal  fa- 
cilities at  a  union  station  and  fixing  rate  for  privileges 
was  held  not  to  deprive  the  former  company  of  property 
without  due  process  of  law.174 

Log-Boom  Charges — A  statute  giving  a  lien  for  inspect- 
ing and  scaling  logs  run  through  a  chartered  boom  in 

"I  Harris  v.  Runnels,  12  How.  83;  Gofer  v.  Riseling,  55  S.  W. 
235;  Xiemeyer  v.  Wright,  75  Va.  239. 

172  Kreibohm  v.  Yancey,  55  S.  W.  260;  Adler  v.  Corl,  15  Mo.  149. 

173  State  v.  Mason,  55  S.  W.  636 ;  Mason  v.  Missouri,  179  U.  S.  328. 

174  State  v.  Jacksonville  Terminal   (Fla.),  27  So.  R.  225. 


234  RIGHTS    AND    PRIVILEGES    UNDER 

favor  of  the  survejer  general  for  his  lawful  fees  and 
charges,  and  making  the  lien  on  such  logs  enforcible 
against  them,  was  held  not  'to  deprive  their  owners  of 
property  without  due  process  of  law.175 

Possession  Pendente  Lite  of  Property  Sued  for. — Statutes 
are  to  be  found  like  that  in  the  West  Virginia  code  176  in 
actions  of  detinue  and  replevin  for  the  recovery  of  spe- 
cific personal  property,  and  also  in  actions  of  unlawful 
entry  for  the  recovery  of  realty,  providing  that  the  claim- 
ant may  get  from  his  adversary,  and  hold  pending  the 
suit,  possession  of  the  property  in  controversy,  such  pos- 
session to  abide  the  result  of  the  suit,  by  giving  bond. 
This  takes  from  the  defendant  actual  possession  of  prop- 
erty prior  to  judicial  ascertainment  of  the  right,  thus 
materially  detracting  from  the  right  of  the  other  party, 
and  it  might  therefore  be  thought  to  deprive  him  of  prop- 
erty, and  that  without  due  process  of  law;  but  it  has 
been  held  not  to  be  so.17-"1 

Preferred  Lien  for  Labor. — A  statute  giving  servants 
and  laborers  a  preferred  lien  for  compensation  on  the 
property  of  their  employers  sold  under  execution  for  debt, 
such  lien  not  to  exceed  one  hundred  dollars  for  services 
rendered  within  sixty  days,  has  been  held  not  to  take 
property  without  due  process  of  law.178 

Patented  Articles,  Sale  of. — We  must  not  think  that  be- 
cause the  United  States  under  its  patent  laws  has  granted 
a  patent  right  upon  any  article,  that  it  may  be  sold  in  the 

•     ITS  Lindsay  &  Phelps  Co.  v.  Mullen,  176  U.  S.  126,  20  Sup.  Ct.  325. 
nsCh.  102. 

ITT  state  v.  Prather,  19  Wash.  336. 
ITS  Gleason  v.  Tacoma,  16  Wash.  412. 


THE    FOURTEENTH     AMENDMENT.  235 

states  regardless  of  its  character  as  calculated  to  injure 
the  public  as  to  health,  morals  or  otherwise.  The  patent 
is  granted  only  in  the  interest  of  the  patentee,  to  give 
him  a  reward  for  his  invention  by  way  of  a  monopoly 
against  competition  for  a  number  of  years,  and  was  never 
designed  to  adjust  any  rights  between  the  patentee  and  the 
public  interests  under  the  police  power.  Hence  a  state 
may,  by  an  act  of  police,  that  is  a  legitimate  exercise  of 
police  power,  prohibit  the  sale  of  any  patented  article, 
if  in  anywise  deleterious  to  the  public.179 

Privilege  Clause  prohibiting  states  from  abridging  the 
privileges  and  immunities  of  citizens  of  the  United  States, 
like  the  clauses  in  relation  to  life,  liberty  and  property 
and  the  equal  protection  of  the  law,  is  subject  to  the 
rightful  police  power  of  the  state,  and  was  not  designed 
to  restrict  that  power.180 

Inspection  of  the  Body. — Can  a  plaintiff  in  a  civil,  per- 
sonal action  suing  for  injury  to  his  person  be  required, 
against  his  will,  on  motion  of  defendant,  for  purposes  of 
evidence  on  the  trial,  to  submit  to  a  surgical  or  other 
examination  of  his  body  ?  In  Union  Pacific  Railway 
Company  v.  Botsford  1S1  this  power  is  denied  in  the  hold- 
ing that  "A  court  of  the  United  States  can  not  order  a 
plaintiff  in  an  action  for  injury  to  the  person,  to  sub- 
mit to  a  surgical  examination  in  advance  of  the  trial." 
The  opinion  by  Justice  Gray  enunciates  the  principle 
that  no  right  is  more  sacred  or  more  carefully  guarded 

ITS  Patterson  v.  Kentucky,  97  U.  S.  501. 

iso  U.  S.  v.  Cruikshank,  92  U.  S.  542;  In  re  Kemmler,  136  U.  S. 
436. 

isi  141  U.  S.  250. 


236  RIGHTS    AND    PRIVILEGES    UNDER 

by  the  common  law  than  the  right  of  every  individual  to 
the  possession  and  control  of  his  own  person,  free  from 
all  interference  by  others,  quoting  Cooley  on  Torts,  29, 
"The  right  of  one's  person  may  be  said  to  be  a  right  of 
complete  immunity ;  to  be  let  alone."  Not  only  wearing  ap- 
parel, but  a  watch  or  jewel,  worn  on  the  person,  is  for  the 
time  being  privileged  from  being  taken  under  distress 
for  rent  or  attachment  or  execution.182  The  court  said 
that  inviolability  of  person  is  as  much  invaded  by  com- 
pulsory stripping  and  exposure  as  by  a  blow ;  that  to  com- 
pel any  one,  especially  a  woman,  to  lay  bare  the  body,  or 
submit  it  to  the  touch  of  a  stranger,  without  lawful 
authority,  is  an  indignity,  an  assault  and  trespass,  and  no 
order  or  process  commanding  such  exposure  was  ever 
known  to  the  common  law  in  the  administration  of  justice 
between  individuals,  except  in  a  very  small  number  of 
cases  based  upon  special  reasons,  and  upon  ancient  prac- 
tice, coming  down  from  ruder  ages,  now  mostly  obsolete 
in  England,  and  never,  "so  far  as  we  are  aware,"  intro- 
duced into  this  country.  Justice  Gray  then  refers  to  the 
old  practice  of  inspection  of  the  body  without  jury  to 
test  infancy  or  identity  of  person;  or,  to  test  maihem  or 
no  maihem  in  an  action  of  trespass  for  maihem  or  atro- 
cious battery,  on  the  motion  of  the  plaintiff  himself  after 
verdict  to  increase  damages.  He  said  that  these  inspec- 
tions were  not  for  submitting  the  results  to  a  jury.  He 
also  instanced  the  practice  in  divorce  cases  of  inspection 
to  determine  impotency,  as  resting  on  the  public  interest 
in  upholding  or  dissolving  marriage,  and  he  said  this 
182  3  Bl.  Comm.  8. 


THE    FOURTEENTH     AMENDMENT.  237 

was  civil  law  as  administered  in  ecclesiastical  courts,  not 
common  law.  Justice  Gray  also  spoke  of  the  instance 
of  the  writ  de  venire  inspiciendo  to  ascertain  whether  a 
condemned  woman  was  pregnant,  and  he  stated  that  this 
was  based  on  the  public  interest  that  the  life  of  an  un- 
born child  should  not  be  taken.  These  instances  were 
treated  in  the  opinion  as  not  forming  the  rule,  as  not  call- 
ing for  the  enforcement  as  a  means  of  evidence  in  civil 
cases  of  such  inspection  of  the  body.  The  opinion  re- 
fered  to  a  number  of  state  decisions  holding  the  contrary, 
and  expressed  strong  dissent  from  them.  The  opinion  said 
that  the  state  decisions  in  this  mere  matter  of  practice 
and  evidence  would  not  control  federal  courts.  The  ma- 
jority of  the  court  condemned  the  rule  prevalent  in  many 
of  the  state  courts.  Justices  Brewer  and  Brown  dissented. 
All  conceded  that  if  the  plaintiff  refused  to  yield  to  such 
inspection  for  purposes  of  evidence  to  the  jury,  the  fact 
of  refusal  might  be  legitimately  made  a  subject  of  com- 
ment before  the  jury  to  the  prejudice  of  the  plaintiff's 
cause.  A  later  case  in  the  Circuit  Court  of  Appeals183 
follows  the  case  just  mentioned,  going  further  in  the  re- 
spect that  it  holds  that  such  inspection  will  not  be  allowed 
either  before  or  during  the  trial.  The  contention  in  favor 
of  this  right  of  inspection  is  quite  plausible.  It  is  based 
on  the  theory  that  when  a  man  comes  into  a  court  of  jus- 
tice asking  at  the  hands  of  the  law  reparation  for  an  in- 
jury done  him  by  his  fellow-man,  justice  demands  that  he 
make  a  full  breast  of  his  case,  suppressing  nothing,  ex- 
posing all  for  the  attainment  of  truth  and  justice.  The 

iss  Illinois  Central  v.  Griffin,  80  Fed.  278. 


238  RIGHTS    AND    PRIVILEGES    UNDER 

state  cases  are  conflicting.  Jones  on  Evidence184  asserts 
the  true  rule  to  be  contrary  to  the  decision  of  the  Supreme 
Court  and  Circuit  Court  of  Appeals  above  stated,  citing 
the  cases.185  I  observe  that  the  late  case  of  Wanek  v. 
City  of  Winona180  takes  the  power  to  allow  such  inspec- 
tion as  well  settled,  but  does  not  discuss  the  subject  or 
cite  authorities. 

This  subject  is  one  of  importance.  My  own  view 
would  be  that  the  subject  is  one  concerning  "liberty"  as 
used  in  the  federal  and  state  constitutions,  and  immunity 
from  such  corporeal  inspection  is  what  Blackstone  would 
call  "liberty  of  person/7  a  great  immunity  inseparably 
annexed  to  the  personality  of  a  human  being,  sacred  un- 
to him,  which  no  call  of  even  justice  can  invade  under  the 
Constitution,  and  I  would  think  that  the  principles  stated 
by  the  Supreme  Court  of  the  United  States  are  sound  as 
an  original  question.  If  Justice  Gray  is  right  in  stat- 
ing that  the  common  law  did  not  accord  this  right  of  in- 
spection, as  I  think  he  is,  then  we  can  not  say  that  common 
law  practice  precedent  to  the  adoption  of  the  American 
constitutions  or  the  Fourteenth  Amendment  gave  this 
right  of  inspection,  and  as  this  right  of  exemption  from  it 
is  one  of  liberty,  it  would  be  protected  by  the  Fourteenth 
Amendment,  as  well  as  by  the  state  constitutions,  and  the 
enforced  inspection  would  take  away  liberty  without  due 
process  of  law.  But  we  must  be  careful  here.  We  must 
remember  the  Supreme  Court  was  only  laying  down  a 

"4  Vol.  2,  Sec.  398. 

iss  Graves  v.  Battle  Creek,  95  Mich.  266,  19  L.  R.  A.  641 ;  White 
v.  Milwaukee,  61  Wis.  536,  50  Am.  R.  154,  note  14  L.  R.  A.;  Side- 
kum  v.  St.  L.  Co.  93  Mo.  400,  3  Am.  St.  R.  549  and  note. 

18680  N.  W.  R.  851. 


THE    FOURTEENTH     AMENDMENT.  239 

rule  of  practice  and  evidence  for  national  courts,  though, 
as  I  read  the  opinion,  it  stated  general,  fundamental  prin- 
ciples of  constitutional  law.  In  those  states  where  the  rule 
of  evidence  established  before  the  amendment  came,  al- 
lowed such  inspection,  I  suppose  such  rule  would  not  be 
interfered  with  by  the  amendment ;  but  in  states  where  it 
was  not  established  as  legitimate  procedure,  I  would  doubt 
the  power  to  enforce  such  corporeal  inspection,  though 
the  matter  be  one  pertaining  to  mere  evidence  and  pro- 
cedure. 

After  writing  the  foregoing  matter  upon  the  subject,  I 
find  the  case  of  Camden  Co.  v.  Stetson,1  holding  that  if 
there  is  a  state  statute  allowing  such  inspection,  a  federal 
court  in  that  state  will  enforce  inspection  of  the  body. 
The  case  seems  to  recognize  the  validity  of  the  statute 
impliedly,  but  does  not  discuss  the  constitutional  question. 
Kailroad  Co.  v.  Childers2  holds  such  a  statute  valid.  But 
such  inspection  can  only  be  granted  where  the  person  to 
be  inspected  is  the  plaintiff,  and  only  by  dismissal  of  the 
case.3 

Osteopathy. — This  new  word  is  composed  of  two  Greek 
words,  literally  meaning  the  restoration  of  bone.  It  is 
practiced  by  some  for  the  cure  of  ailment  by  a  process 
which  rejects  the  use  of  drugs  or  medicine,  and  substitutes 
a  system  of  rubbing  and  kneading  of  the  body.  Does 
this  practice  fall  under  those  statutes  like  that  involved  in 
Dent  v.  West  Virginia,187  prohibiting  the  practice  of  med- 

1 177  U.  S.  173. 

282  Ga.   719. 

s  Bagwell  v.  Atlanta,  109  Ga.  611,  34  S.  W.  1018. 

187  129  U.  S.   114. 


240  RIGHTS    AND    PRIVILEGES    UNDER 

icine  and  surgery  without  a  certificate  of  authority  from 
the  medical  board  constituted  under  the  police  power  by 
state  statute  for  the  regulation  of  such  practice  for  the 
public  welfare?  Both  are  for  the  cure  or  treatment  of 
human  ailment.  Incoinpetency  in  the  one  is  as  deadly  as 
in  the  other.  Do  those  who  follow  the  practice  of  faith 
cure  or  Christian  science  or  spiritual  healing  fall  under 
these  laws?  There  has  been  great  controversy  in  the 
various  states  upon  these  matters.  Those  who  practice 
such  healing  claim  that  the  right  is  of  the  highest  import, 
one  of  liberty,  the  right  to  make  a  living,  the  right  to  con- 
tract, the  right  to  pursue  a  calling  and  secure  happiness. 
It  is  very  clear  that  under  the  high  behests  of  public 
health  and  safety  of  life  the  state  may,  under  its  police 
power,  regulate  such  practices,  or,  under  proper  circum- 
stances, prohibit  them.  Whether  osteopathy  and  other 
practices  mentioned  fall  under  such  statutes  is  dependent 
upon  the  phraseology  of  the  statute.  In  Ohio  is  a  statute 
providing  that  one  practicing  medicine  or  surgery  must 
have  a  certificate  of  authorization  from  a  state  board,  and 
that  anyone  should  be,  under  the  statute,  deemed  to  prac- 
tice medicine  or  surgery  who  signed  himself  M.  D.,  or 
prescribed  or  recommended  "any  drug  or  medicine  or  other 
agency  for  treatment."  It  was  held  in  State  v.  Lef- 
f ring1  ss  j.na{.  osteopathy  was  not  "an  agency"  under  the 
statute,  and  that  an  osteopath  was  not  amenable  to  the 
statute.  On  the  other  hand,  it  was  held  that  to  treat 
or  operate  upon  a  person  for  physical  ailment  by  rubbing 
the  affected  part  is  a  treatment  or  operation  for  physical 

18855  N.  E.  E.  168. 


THE     FOURTEENTH     AMENDMENT.  241 

ailment,  and  is  practicing  medicine  within  the  meaning 
of  the  act  to  regulate  the  practice  of  medicine,  which 
provided  that  anybody  shall  be  regarded  as  practicing 
medicine  who  shall  treat,  operate  on  or  prescribe  for  any 
physical  ailment.189 

Free  Passage  on  Railroads. — An  act  requiring  it  of  rail- 
roads for  shippers  of  stock  was  held  contrary  to  the  Four- 
teenth Amendment  as  depriving  the  railroad  company 
of  property  without  due  process  of  law  and  as  denying 
equal  protection  of  the  law,  in  Atchison,  Topeka  &  Santa 
Fe  v.  Campbell,190 

Penalty  on  Injunctions. — An  act  imposing  a  penalty  of 
fifty  percent  interest  for  an  injunction  against  taxes  not 
sustained  was  held  not  contrary  to  the  constitution  as 
depriving  the  party  of  property  without  due  process.191 

Taking  Water  Without  Pay. — A  municipal  corporation 
taking  the  water  from  another's  land  without  compensa- 
tion takes  property  without  due  process  of  law,  con- 
trary to  the  constitution.192 

City  Assessment. — A  statute  providing  that  it  should  be 
a  first  lien  on  property,  and  that  bonds  issued  therefor 
should  be  conclusive  evidence  of  the  validity  of  the  lien, 
deprives  the  owner  of  property  without  due  process  of 
law.  As  stated  elsewhere  (p.  194)-,  it  was  that  feature 
of  the  statute  which  made  the  assessment  conclusive  evi- 
dence of  the  lien,  and  thus  foreclosed  inquiry  upon  the 

189  Jones  v.  People,  84  111.  App.  453 ;  Little  v.  State,  84  N.  W.  248. 
So  is  Christian  Science,  State  v.  Buswell,  40  Neb.  158. 
19059  Pac.   1051    (Kan.). 

191  Missouri,  K.  &  T.  R.  Co.  v.  Board,  59  Pac.  383,  9  Kans.  App. 
545. 

192  Fisher  v.  City   (Utah),  59  Pac.  520. 


242  RIGHTS    AND    PRIVILEGES    UNDER 

question,  which  put  the  brand  of  unconstitutionally  upon 
the  statute.193 

Curative  Act  for  Taxes. — The  mode  in  which  property 
shall  be  appraised  for  taxes,  by  whom  and  when,  what 
certificate  of  their  action  shall  be  furnished  by  the  person 
or  board  doing  it ;  when  the  parties  may  be  heard  for  cor- 
rection of  errors,  are  all  matters  of  legislative  discretion, 
and  it  is  within  the  power  of  the  state  legislature  to  cure 
omission  or  defective  performance  of  such  of  the  acts  re- 
quired by  law  to  be  performed  in  the  assessment  as  could 
have  been  in  the  first  place  omitted  from  the  requirement 
of  the  statute,  or  might  have  been  required  to  be  done  at 
another  time  than  that  named  in  it,  provided  intervening 
rights  are  not  impaired.194 

Bank  Officer  Receiving  Deposits,  knowing  of  bank's  in- 
solvency, may  be  held  guilty  of  a  crime,  and  the  act  mak- 
ing it  crime  does  not  violate  the  Fourteenth  Amend- 
ment.195 

Enticing  Away  Servants. — A  statute  forbidding,  under 
civil  and  criminal  penalty,  any  person  from  interfering 
with  a  tenant  or  laborer  of  another  during  the  contin- 
uance of  a  lease  or  contract,  was  claimed  to  deny  liberty, 
the  liberty  to  sell  labor  and  to  contract,  and  as  class  leg- 
islation; but  it  was  held  not  to  violate  the  Fourteenth 
Amendment.196 

This  decision  of  the  Mississippi  Court  might  at  first 
be  doubted;  but  as  common  law  makes  it  actionable  for 

193  Ramish  v.  'Hartwell,  58  Pac.  920. 

is*  Williams  v.  Supervisors,  122  U.  S.  154. 

195  State  v.  Darragh,  54  S.  W.  226. 

196  Hoole  v.  Dorroh,  75  Miss.  257. 


THE    FOURTEENTH     AMENDMENT.  243 

one  man  to  entice  away  a  servant  of  another,  or  to  induce 
the  violation  of  a  subsisting  contract,  the  decision  is  cor- 
rect.197 

Solitary  Confinement. — A  law  imposing  solitary  con- 
finement until  execution  of  death  sentence  violates  the 
Fourteenth  Amendment  in  its  requirement  of  due  process, 
because  it  is  ex  post  facto  as  regards  offenses  committed 
before  the  enactment  of  such  law;198  but  it  is  due  pro- 
cess as  to  offenses  committed  after  the  act.199 

197  i  Bl.  Cora.  429. 

198  Medley's  Case,  134  U.  S.  160. 

i99Holden  v.  Minnesota,  137  U.  S.  483;  McElvaine  v.  Brush,  142 
U.  S.  155. 


RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  13. 

JUDGMENT   WITHOUT    SEKVICE   OF 
PKOCESS. 

I  shall  not  discuss  generally  judgments  and  decrees 
and  orders  of  courts  and  their  effect,  because  that  is  an 
extensive  field  aside  from  the  purposes  of  this  work.  I 
shall  speak  of  them  only  as  to  the  question  whether  they 
conform  to  the  demand  for  due  process  of  law  contained 
in  the  Fourteenth  Amendment,  and  generally  in  the  state 
constitutions  under  some  phraseology.  Frequently  this 
is  an  important  question.  Is  this  judgment  or  decree 
binding  upon  the  person  and  his  property,  or  certain  of 
his  property?  Or  does  it  so  far  depart  from  due  and 
regular  procedure  as  to  be  without  due  process  of  law 
and  void? 

Upon  principles  of  justice  and  authority,  no  judgment 
or  decree  for  money,  to  have  the  force  of  a  personal 
judgment  or  decree,  known  in  law  as  a  judgment  in  per- 
sonam,  that  is,  one  conclusive  for  all  purposes,  as  res 
judicata,  establishing  finally  between  the  parties  and  their 
privies  the  existence,  the  amount  and  the  justness  of  a  debt 
against  the  person,  enforceable  against  any  and  all  his 
property  liable  under  the  law  for  debt,  and  which  is  a 


THE    FOURTEENTH     AMENDMENT.  245 

finality,  not  only  in  the  state  where  the  judgment  is 
rendered,  but  which  shall  have  in  other  states,  under 
Article  IV  of  the  federal  Constitution,  the  same  full  faith, 
credit  and  effect  as  it  has  in  the  state  where  rendered — 
no  such  judgment  or  decree  can  be  rendered  without  serv- 
ice of  process  upon  the  person  unless  he  appears  in  the 
suit.  Such  a  judgment  would  be  void  under  the  state 
constitution  everywhere,  and  would  take  the  property  of 
the  debtor  without  due  process  of  law,  contrary  to  the 
Fourteenth  Amendment  of  the  federal  Constitution.  A 
state  can  not  usurp  this  power.1  Justice  Field  in  the  great 
case  of  Pennoyer  v.  ]N"eff,2  which  is  a  notable  landmark 
case  under  this  head,  in  delivering  the  opinion  of  the  court 
very  ably  and  lucidly  expounded  the  general  principles 
of  law  upon  this  very  grave  and  important  subject.  "The 
several  states  of  the  Union  are  not,  it  is  true,  in  every  re- 
spect independent,  many  of  the  rights  and  powers  which 
originally  belonged  to  them  being  now  vested  in  the  gov- 
ernment created  by  the  Constitution.  But,  except  as  re- 
strained by  that  instrument,  they  possess  the  authority 
of  independent  states,  and  the  principles  of  public  law  to 
which  we  have  referred  are  applicable  to  them.  One  of 
jurisdiction  and  sovereignty  over  persons  and  property 
within  its  territory.  As  a  consequence,  every  state  has 
the  power  to  determine  for  itself  the  civil  status  and  ca- 
pacities of  its  inhabitants;  to  prescribe  the  subjects  up- 
on which  they  may  contract;  the  forms  and  solemnities 
with  which  their  contracts  shall  be  executed;  the  rights 
and  obligations  arising  from  them,  and  the  mode  in  which 

1  Fowler  v.  Lewis,  36  W.  Va.  112. 

2  95  U.  S.  714. 


246  RIGHT 8    AND    PRIVILEGES    UNDER 

their  validity  shall  be  determined  and  their  obligation 
enforced;  and  also  to  regulate  the  manner  and  conditions 
upon  which  property  situated  within  such  territory,  per- 
sonal and  real,  may  be  acquired,  enjoyed  and  transferred. 
The  other  principle  of  public  law  follows  from  the  one 
mentioned ;  that  is,  that  no  state  can  exercise  direct  juris- 
diction and  authority  over  persons  and  property  without 
its  territory.  Story,  Confl.  L.  Ch.  2;  Wheat.  Internal. 
Law,  pt.  2,  c.  2.  The  several  states  are  of  equal  dignity 
and  authority,  and  the  independence  of  one  implies  the 
exclusion  of  powers  from  all  others.  And  so  it  is  laid 
down  by  jurists  as  an  elementary  principle  that  the  laws 
of  one  state  have  no  operation  outside  of  its  territory  ex- 
cept so  far  as  is  allowed  by  comity,  and  that  no  tribunal 
established  by  it  can  extend  its  process  beyond  that  ter- 
ritory so  as  to  subject  either  persons  or  property  to  its 
decision.  'Any  exertion  of  authority  of  this  sort  beyond 
this  limit/  says  Story,  'is  a  mere  nullity  and  incapable 
of  binding  such  persons  or  property  in  any  other  tribu- 
nal'. But  as  contracts  made  in  one  state  may  be  enforce- 
able only  in  another  state,  and  property  may  be  held  by 
non-residents,  the  exercise  of  jurisdiction,  which  every 
state  is  admitted  to  possess  over  persons  and  property  with- 
in its  own.  territory,  will  often  affect  persons  and  property 
without  it.  To  any  influence  exerted  in  this  way  by  a 
state  affecting  persons  resident  or  property  situated  else- 
where, no  objection  can  be  justly  taken ;  whilst  any  direct 
exertion  of  authority  upon  them,  in  an  attempt  to  give 
extra-territorial  operation  to  its  laws,  or  to  enforce  any 
extra-territorial  jurisdiction  by  its  tribunals,  would  be 
deemed  an  encroachment  upon  the  independence  of  the 


TED    FOURTEENTH     AMENDMENT.  247 

state  in  which  the  persons  are  domiciled  or  the  property 
is  situated,  and  may  be  resisted  as  usurpation.  Thus,  the 
state,  through  its  tribunals,  may  compel  persons  domiciled 
within  its  limits  to  execute,  in  pursuance  of  their  contracts 
respecting  property  elsewhere  situated,  instruments  in 
such  form  and  with  such  solemnities  as  to  transfer  the 
title,  so  far  as  such  formalities  can  be  complied  with; 
and  the  exercise  of  this  jurisdiction  in  no  manner  inter- 
feres with  the  supreme  control  over  the  property  by  the 
state  within  which  it  is  situated.  Penn  v.  Lord  Balti- 
more, 1  Yes.  444;  Massie  v.  Watts,  6  Cranch  148;  Wat- 
kins  v.  Holman,  16  Pet.  25;  Corbett  v.  ISTutt,  10  Wall. 
4G4.  So  the  state,  through  its  tribunals,  may  subject 
property  situated  within  its  limits  owned  by  non-residents 
to  the  payment  of  the  demands  of  its  own  citizens  (and 
others)  against  them ;  and  the  exercise  of  this  jurisdiction 
in  no  respect  infringes  upon  the  sovereignty  of  the  state 
where  the  owners  are  domiciled.  Every  state  owes  pro- 
tection to  its  own  citizens,  and  when  non-residents  deal 
with  them,  it  is  a  legitimate  and  just  exercise  of  authority 
to  hold  and  appropriate  any  property  owned  by  such  non- 
residents to  satisfy  the  claims  of  its  citizens.  It  is  in 
virtue  of  the  state's  jurisdiction  over  the  property  of  the 
non-resident  situated  within  its  limits  that  its  tribunals 
can  inquire  into  that  non-resident's  obligations  to  its  own 
citizens,  and  the  inquiry  can  then  be  carried  only  to  the 
extent  necessary  to  control  the  disposition  of  the  property. 
If  the  non-resident  have  no  property  in  the  state,  there  is 
nothing  upon  which  the  tribunals  can  adjudicate.  .  .  . 
If  without  personal  service  judgments  in  personam  ob- 
tained ex  parte  against  non-resident  and  absent  parties, 


248  RIGHTS    AND    PRIVILEGES    UNDER 

upon  mere  publication  of  process,  which,  in  a  great  ma- 
jority of  cases,  would  never  be  seen  by  the  parties,  could 
be  upheld  and  enforced,  they  would  be  the  constant  in- 
struments of  fraud  and  oppression.  Judgments  for  all 
sorts  of  claims  upon  contracts  and  for  torts,  real  or  pre- 
tended, would  be  thus  obtained,  under  wrhich  property 
would  be  seized,  when  evidence  of  the  transaction  upon 
which  they  were  founded,  if  they  had  any  existence,  had 
perished.  Substituted  service  by  publication,  or  in  any 
other  authorized  form,  may  be  sufficient  to  inform  parties 
of  the  object  of  proceedings  taken  where  property  is  once 
brought  under  the  control  of  the  court  by  seizure  or  some 
equivalent  act.  The  law  assumes  that  property  is  always 
in  possession  of  its  owner,  in  person  or  by  agent,  and 
proceeds  upon  the  theory  that  its  seizure  will  inform  him, 
not  only  that  it  is  taken  into  the  custody  of  the  court,  but 
that  he  must  look  to  any  proceeding  authorized  by  law  up- 
on such  seizure  for  its  condemnation  and  sale.  Such  serv- 
ice may  also  be  sufficient  in  case  where  the  object  of  the 
action  is  to  reach  and  dispose  of  property  in  the  state,  or 
some  interest  therein,  by  enforcing  a  contract  or  lien  re- 
specting  the  same,  or  to  partition  it  among  different  own- 
ers, or,  when  the  public  is  a  party,  to  condemn  and  appro- 
priate it  to  a  public  purpose.  In  other  words,  such  serv- 
ice may  answer  in  all  actions  which  are  substantially 
proceedings  in  rem.  But  where  the  entire  object  of  the 
action  is  to  determine  the  personal  rights  and  obligations 
of  the  defendant,  that  is,  where  the  suit  is  merely  in  per- 
sonam,  constructive  service  in  this  form  upon  a  non- 
resident is  ineffectual  for  any  purpose.  Process  from 
tribunals  of  one  state  can  not  run  into  another  and  sum- 


THU     FOURTEENTH     AMENDMENT.  249 

mon  persons  there  domiciled  to  leave  its  territory  and  re- 
spond to  proceedings  against  them.  Publication  of  pro- 
cess, or  notice  within  the  state  where  the  tribunal  sits, 
can  not  create  any  greater  obligation  upon  the  non-resident 
to  appear.  Process  sent  to  him  out  of  the  state,  and  pro- 
cess published  within  it,  are  equally  unavailing  in  pro- 
ceedings to  establish  his  personal  liability.  .  .  .  Since 
the  adoption  of  the  Fourteenth  Amendment  to  the  fed- 
eral Constitution  the  validity  of  such  judgments  may  be 
directly  questioned,  and  their  enforcement  in  the  state 
(of  rendition)  resisted,  on  the  ground  that  proceedings 
in  a  court  of  justice  to  determine  the  personal  rights  and 
obligations  of  parties  over  whom  that  court  has  no  juris- 
diction do  not  constitute  due  process  of  law.  Whatever 
the  difficulty  of  giving  those  terms  a  definition  which 
will  embrace  every  permissible  exertion  of  power  affect- 
ing private  rights,  and  exclude  such  as  are  forbidden, 
there  can  be  no  doubt  of  their  meaning  when  applied  to 
judicial  proceedings.  They  then  mean  a  course  of  legal 
proceedings  according  to  those  rules  and  principles  which 
have  been  established  in  our  system  of  jurisprudence  for 
the  protection  and  enforcement  of  private  right.  To  give 
such  proceedings  any  validity,  there  must  be  a  tribunal 
competent  by  its  constitution — that  is,  by  the  law  of  its 
creation — to  pass  upon  the  subject-matter  of  the  suit ;  and 
if  that  involves  merely  a  determination  of  the  personal  lia- 
bility of  the  defendant,  he  must  be  brought  within  its 
jurisdiction  by  service  of  process  within  the  state  or  his 
voluntary  appearance." 

"A  court  of  chancery  acting  in  personam  may  well 
decree  the  conveyance  of  land  in  any  other  state,  and  may 


250  RIGHTS    AND    PRIVILEGES    UNDER 

enforce  the  decree  by  process  against  the  defendant.  But 
neither  the  decree  itself,  nor  any  conveyance  under  it, 
except  by  the  person  in  whom  the  title  is  vested,  can  oper- 
ate beyond  the  jurisdiction  of  the  court."3 

Under  these  principles  the  case  of  Pennoyer  v.  Neff4 
held  a  personal  judgment  on  mere  publication  void,  so 
as  not  to  warrant  an  execution  to  sell  property  under  it; 
and  that  a  sale  under  it  conferred  no  title ;  and  that  prop- 
erty must  be  attached,  as  against  a  non-resident,  at  the 
commencement  of  the  suit  in  order  to  confer  jurisdiction. 
Likewise  a  later  case.5 

Cross-action  and  Set-off. — In  Massachusetts  is  a  statute 
providing  that  if  a  non-resident  sues  there,  a  cross-action 
may  be  brought  against  him  by  service  of  its  process  on 
the  attorney  in  his  action,  if  the  cross-action  is  for  such 
a  demand  as  may  be  set  off.  Held  not  against  the  due 
process  clause  of  the  Fourteenth  Amendment.6  In  states 
where  statutes  allow  sets-off  in  the  same  action  this  must 
be  so ;  but  is  it  so  in  a  separate  action  ?  Even  in  such 
states  can  there  be  personal  judgments  for  surplus  against 
the  non-resident  ?  It  is  not  supposed  that  Dewey  v.  City7 
contradicts  this.  In  that  case  a  state  act  assessing  on  lot 
owners  in  a  city  costs  of  local  improvements  and  mak- 
ing the  owner  personally  liable  was  involved.  In  a  suit 
to  sell  the  lot  for  such  costs  the  non-resident  owner  ap- 
peared to  ask  relief  against  the  assessment,  and  it  was  re- 

sWatkins  v.  Holman,  16  Pet.  25;   Dickinson  v.  Hoomes,  8  Grat. 
410;   Wilson  v.  Braden,  47  W.  Va.,  36  S.  E. 
*95  U.   S.   714. 

B  Overby  v.  Gordon,  177  U.  S.  221. 
«Aldrich  v.  Blatchford,  56  N.  E.  700. 
7  173  U.  S.  193,  19  Sup.  Ct.  379. 


THE     FOURTEENTH     AMENDMENT.  251 

fused  and  personal  judgment  was  given  against  him.  It 
was  held  that  the  act,  while  good  to  charge  the  lot,  was  not 
due  process  to  fix  personal  liability,  and  that  by  appear- 
ance for  relief  the  non-resident  did  not  submit  himself 
to  jurisdiction  for  purposes  of  personal  judgment.  But 
that  was  not  a  set-off;  not  the  case  where  the  non-resi- 
dent comes  into  the  court  of  a  state,  thus  availing  him- 
self of  its  process  to  get  judgment  against  his  debtor,  who, 
in  his  turn,  has  a  lawful  set-off  cognizable  in  that  action 
under  state  law. 

Refusal  of  Defense. — Though  there  be  service  of  pro- 
cess, yet  if  the  defendant  is  not  allowed  to  make  his  de- 
fense, it  is  a  withdrawal  of  the  summons,  "a  denial  of 
the  benefit  of  a  notice,  and  would  in  effect  be  to  deny  that 
he  was  entitled  to  notice  at  all,  and  the  sham  and  decep- 
tive proceeding  had  better  be  omitted  altogether,"  because 
judgment  without  hearing  is  void.8  A  court  can  not 
strike  out  an  answer  and  then  decree  on  the  merits  of  the 
case  against  the  defendant,  without  such  answer,  merely 
because  he  was  held  to  be  in  contempt  in  failing  to  pay 
into  court  the  money  in  controversy.* 

Judgments  In  Rem. — But  while  to  warrant  judgments 
in  personam  there  must  be  service  of  process  in  the 
state  or  voluntary  appearance,  yet  in  all  actions  in  the  na- 
ture of  cases  called  in  admiralty  proceedings  in  rem, 
such  as  attachments  of  property  of  non-residents,  or  suits 
to  recover  property,  or  suits  to  foreclose  liens  on  prop- 
erty, and  the  like — in  short,  any  proceedings  of  such  na- 

8  Windsor  v.  McVeigh,  93  U.  S.  274;  Underwood  v.  McVeigh,  23 
Grat.  409;  McVeigh  v.  U.  S.  11  Wall.  267. 

*Hovey  v.  Elliott,  167  U.  S.  409,  39  L.  R.  A.  449. 


252  RIGHTS    AND    PRIVILEGES    UNDER 

ture — personal  service  is  not  requisite  to  obtain  juris- 
diction and  give  the  full  relief  properly  pertaining  to  the 
nature  of  the  case;  but  there  may  be  publication  of  the 
process  or  notice  of  the  proceeding,  or  service  of  notice 
outside  the  state,  such  as  the  state  law  may  prescribe,  and 
the  judgment  will  be  conclusive  and  binding  as  to  the 
particular  property  or  subject  attached  or  operated  upon 
in  the  proper  way  in  the  case.  For  reasons  above  quoted 
from  the  Supreme  Court,  this  is  just  as  well  settled  as  is 
the  rule  that  for  personal  judgment  there  must  be  per- 
sonal service  of  process.  The  proceedings  here  referred 
to  are  not  technically  proceedings  in  rem,  as  technical 
proceedings  in  rem  are  those  where  the  thing  is  seized  in 
admiralty,  and  the  adjudication  binds  all  mankind,  par- 
ties or  not ;  but  the  proceedings  just  spoken  of  are  properly 
denominated  proceedings  quasi  in  rem,,  binding  only  the 
parties  interested  in  the  property  or  subject  before  the 
court,  and  binding  them  only  as  to  that  property  or  sub- 
ject, except  some  proceedings  to  settle  personal  status,, 
as  divorce,  or  in  probate  of  wills,  which  bind  the  world. 
It  makes  no  difference  what  is  the  form  of  the  pro- 
ceeding, whether  by  attachment,  action  to  recover  prop- 
erty, real  or  personal,  to  partition  land,  to  remove  cloud 
over  title,  or  settle  title  to  land,  to  probate  a  will,  for 
divorce,  to  enforce  liens,  so  it  be  in  nature  and  substance 
a  proceeding  in  remf  the  rule  applies.  Though  not  tech- 
nically in  rem,  it  is  quasi  in  rem,  operative  upon  the  res, 
or  thing  or  matter  before  the  court.9 

»  Roller  v.  Holly,  176  U.  S.  398;  Arndt  v.  Griggs,  134  U.  S.  316; 
Cooper  v.  Reynolds,  10  Wall.  308. 


TUB    FOURTEENTH     AMENDMENT.  253 

"Jurisdiction  is  acquired  in  one  of  two  modes:  First, 
as  against  the  person  of  the  defendant,  by  the  service  of 
process;  or,  Second,  by  a  proceeding  against  the  prop- 
erty of  the  defendant  within  the  jurisdiction  of  the  court. 
In  the  latter  case,  the  defendant  is  not  personally  bound 
by  the  judgment  beyond  the  property  in  question."1 

Divorce  Suits  and  Others  Affecting  Personal  Status  or 
requiring  the  execution  of  deeds.  In  these  cases  there 
may,  consistently  with  the  amendment,  be  judgment  or 
decree  without  personal  service,  on  publication,  as  the 
proceeding  is  in  nature  in  rem;  but  the  law  prescribing 
such  constructive  notice  in  place  of  personal  notice  mast 
be  closely  complied  with,  else  the  proceeding  is  void.11 
Though  upon  publication  there  can  be  a  decree  of  divorce, 
there  can  be  no  decree  for  alimony.  That  part  of  the 
decree  would  be  void,  because  a  personal  decree  for 
money.12 

If  the  law  of  the  state  of  the  actual  domicile  of  the  hus- 
band or  wife  allows  a  divorce  on  publication  or  other 
constructive  service  of  process,  without  personal  service, 
the  decree  of  divorce  is  effectual  the  world  over,  and  is 
due  process,  though  the  other  party  was  never  in  the 
state.13  But  this  is  not  so,  unless  the  statute  as  to  publi- 
cation of  notice  is  complied  with.  If  it  is  not  complied 
with,  then  the  decree  is  void.14  The  actual  domi- 

lofioswell  v.  Otis,  9  Ho\v.   348. 

nCheever  v.  Wilson,  9  Wall.  108;  Harding  v.  Alston,  9  Me.  140; 
Laney  v.  Garbee,  105  Mo.  355,  24  Am.  St.  R.  391. 

i2Bunnel  v.  Bunnel,  25  Fed.  214;  Turner  v.  Turner,  44  Ala.  450; 
Coger  v.  Coger,  35  S.  E.  K.  823. 

is  Story,  Confl.  L.  Sec.  230 ;  Cheever  v.  Wilson,  9  Wall.  108. 

i*Cheely  v.  Clayton,  110  U.  S.  701. 


254  RIGHTS    AND    PRIVILEGES    UNDER 

cile  of  either  party  will  make  the  decree  of  divorce 
good,  if  the  law  of  that  state  allows  a  divorce  there  on 
publication.15  If  neither  party  has  a  domicile  in  the 
state,  appearance  in  the  suit  does  not  make  the  decree 
good.16 

If  a  party  leave  his  domicile  in  one  state  and  go  into 
another,  only  to  get  a  divorce,  and  thus  acts  in  fraud  of 
the  law  to  obtain  unlawful  jurisdiction  for  his  suit,  the 
wife  not  being  served  with  process,  but  absent  in  the  for- 
mer state,  the  decree  is  void ;  it  is  not  by  due  process.  It 
will  not  be  recognized  in  another  state.  To  give  juris- 
diction for  divorce,  the  party  asking  it  must  have  actual 
bona  fide  domicile  in  the  state  of  the  suit  when  the  suit 
begins,  as  no  state  has  lawful  power  over  citizens  of  an- 
other state  or  their  status.17 

• 

Such  divorces  on  constructive  notice  merely  are  in  rem 
final  only  on  the  personal  status,  dissolving  the  marriage, 
making  the  parties  no  longer  man  and  wife;  but  the  de- 
cree must  not  allow  alimony  or  costs  or  make  provision 
as  to  the  custody  of  children  or  property,  and  in  so  far 
as  it  does  so,  it  would  be  void  elsewhere,  likely  in  the  state 
itself,  because  not  according  to  due  process ;  but  where  the 
decree  is  rendered  on  personal  service  of  process,  it  is 
in  personam  and  binding  as  to  alimony,  costs  and  custody 
of  children.18 

is  Story,  Confl.  L.  Sec.  230a. 

ie  Harrison  v.  Harrison,  20  Ala.  629,  56  Am.  D.  227. 

17  Cheever  v.  Wilson,  9  Wall.  123 ;  Hood  v.  State,  56  Ind.  263,  26 
Am.  R.  21 ;  Hoffman  v.  Hoffman,  7  Am.  R.  299 ;  Anderson  v.  Ander- 
son, 57  N.  E.  333  (full). 

isfiunnel  v.  Bunnel,  25  Fed.  214. 


THE     FOURTEENTH.     AMENDMENT.  255 

Condemnation  of  Land.  —  In  this  proceeding  for  con- 
demnation of  land  for  public  use,  publication  of  notice 
to  the  land-owner,  if  non-resident,  is  sufficient,  and  is  due 
process  of  law;  but  if  resident  in  the  state,  he  must  have 
personal  service  of  notice.19 

Settlement  of  Special  Administrator.  —  A  statute  allowing 
a  special  administrator  to  make  a  settlement  of  his  ac- 
counts, and  providing  that  it  shall  be  conclusive  on  dis- 
tributees without  notice,  held  not  repugnant  to  the  Four- 
teeth  Amendment.  He  is  like  a  special  receiver  in  a 
suit,20 

Denial  of  Jurisdictional  Facts.  —  Whilst  a  judgment  in 
one  state  on  personal  service  of  process  or  appearance 
is  a  finality  everywhere  on  the  merits,  establishing  a  debt 
and  precluding  new  inquiry  into  the  merits  of  the  cause 
of  action,  in  the  courts  of  another  state,  not  by  common 
law,  but  only  by  reason  of  Article  IV  of  the  Constitution 
and  the  Act  of  Congress  under  it  giving  the  judgment  the 
same  faith  and  credit  in  other  states  as  it  has  in  the  state 
where  rendered,  yet  when  it  comes  up  in  another  state, 
it  may  be  denied  such  force  by  proof  that  in  fact  there 
was  no  personal  service  or  appearance,  even  though  the 
record  of  the  judgment  assert  that  there  was.  It  is  set- 
tled that  the  provision  of  the  Constitution  giving  the 
judgment  in  all  states  the  same  faith  and  credit  which 
it  has  in  the  state  of  its  rendition  does  not  preclude  in- 
quiry into  Jurisdictional  facts;  and  this  on  the  prin- 
ciple lying  at  the  root  of  all  judicial  proceedings  binding 


v.  Kaw  Valley  Co.  130  U.  S.  559. 
2oR0  Bard  v.  Lamb,  127  U.  S.  58. 


256  RIGHTS    AND    PRIVILEGES    UNDER 

the  person,  that  we  must  see  that  the  court  had  jurisdic- 
tion of  the  subject-matter  and  the  person.21 

Process  on  One  Partner  will  not  give  right  to  a  per- 
sonal judgment  against  another,  whether  the  firm  is  ex- 
istent or  dissolved,  and  such  judgment  is  void  as  to  him, 
even  if  his  copartner  authorized  an  appearance  for  him.22 

Where  a  statute  allowed  a  judgment  against  the  firm 
assets  only,  but  to  have  no  personal  effect  as  to  the  partner 
not  served  with  process,  the  statute  was  held  not  to  con- 
travene the  Fourteenth  Amendment.23 

Escheat,  Decree  of,  on  mere  publication  of  notice  under 
a  statute  allowing  it,  is  valid  against  all  interested  in 
the  land,  because  it  is  an  in  rem  proceeding.24 

Appearance  to  Question  Jurisdiction. — A  statute  con- 
verted such  appearance  into  a  general  appearance,  and  a 
judgment  in  such  case  was  held  to  be  according  to  due  pro- 
cess, and  not  void  under  the  Fourteenth  Amendment.25 

Injunction  Against  a  Citizen  restraining  him  from  pros- 
ecuting a  suit  in  another  state,  held  lawful  under  the 
federal  Constitution.26 

Administration  Granted  for  a  Live  Man  as  Dead  is  not 
due  process  of  law  as  to  him,  and  is  void.27 

21  Thompson  v.  Whitman,   18  Wall.  457;   Stewart  v.  Stewart,  27 
W.  Va.  167;  Gilchrist  v.  Land  Co.  21  W.  Va.  115;  Bowler  v.  Huston, 
30  Grat.  266,  32  Am.  R.  673. 

22  Hall  v.  Lanning,  91   U.   S.   160;   Ferguson  v.  Millender,   32  W. 
Va.  30;  Boiler  v.  Huston,  30  Grat.  266;  32  Am.  R.  673. 

23  Sugg  v.  Thornton,  132  U.  S.  524. 

24  Hamilton  v.  Brown,  161  U.  S.  256. 

25  York  v.  Texas,  137  U.  S.  15. 
2eCole  v.  Cunningham,   133  U.   S.   107. 
27  Scott  v.  McNeal,  154  U.  S.  34. 


THE     FOURTEENTH     AMENDMENT.  257 

Attachment  on  Property  Both  In  Rem  and  In  Personam. — 
This  may  be  the  case.  It  is  in  rem  if  there  is  only  attach- 
ment of  property ;  but  both  in  personam  and  in  rem  where 
the  defendant  is  personally  served  with  process  or  appears, 
and  his  property  is  attached.  In  the  latter  case,  a  judg- 
ment that  is  both  personal  and  also  one  subjecting  the  at- 
tached estate  may  be  entered — otherwise  only  the  prop- 
erty can  be  sold.  To  make  it  valid  as  an  in  rem  proceeding 
there  must  be  levy  or  seizure  of  the  property;  to  make 
it  in-  personam,  there  must  be  service  personal,  or  appear- 
ance in  the  suit,  to  be  consistent  with  the  demand  of  due 
process  of  law.  The  judgment  is  not  a  personal  one, 
even  in  its  own  state,  if  without  personal  service  or  ap- 
pearance, but  affects  only  the  property  attached.28 

Ejectment  or  Other  Suit  to  Recover  Land,  or  partition  it, 
or  a  suit  to  remove  cloud  over  it,  or  to  quiet  its  title,  or  can- 
cel a  deed  for  mistake  or  fraud,  or  to  set  aside  a  deed  as 
fraudulent  against  creditors,  or  to  foreclose  a  mortgage  on 
the  land,  or  to  subject  land  to  judgment  liens  or  mechan- 
ic's liens,  and  the  like,  may  go  upon  constructive  service 
of  process  by  publication,  as  provided  in  the  case  by  state 
law,  and  it  will  be  due  process  of  law  under  the  Fourteenth 
Amendment,  because  it  is  the  usual  process  in  such  cases, 
and  gives  jurisdiction  to  the  court  over  the  subject-mat- 
ter, and  affects  the  property  and  its  title  alone,  and  im- 
poses no  personal  liability  on  the  defendant.  There  can 
not  be  a  personal  judgment  for  costs  in  such  a  case.29 
The  proceeding  is  in  rem,  not  in  personam  in  such  cases. 
This  jurisdictional  efficacy  of  the  state  courts  must  nec- 

2?  Cooper   v.    Reynolds,    10   Wall.    308. 
2»  Freeman  v.  Alderson,   119  U.  S.   185. 


258  RIGHTS    AND    PRIVILEGES    UNDER 

essarily  be  so,  else  a  state  would  have  no  right  to  act 
upon  or  settle  title  to  land  within  it,  where  a  non-resi- 
dent claims  it,  and  will  not  submit  himself  to  its  juris- 
diction. A  state  must  have  power  to  act  upon  the  title 
to  land  within  it  and  subject  it  to  debt  or  other  lawful 
claim  of  its  own  people,  or  of  others  asking  relief  of  it. 
Such  proceedings  do  not  violate  the  Fourteenth  Amend- 
ment by  depriving  of  property  without  due  process  of 
law.30 

In  Arndt  v.  Griggs,  just  cited,  it  is  held :  "A  state  may 
provide  by  statute  that  the  title  to  real  estate  within  its 
limits  shall  be  settled  and  determined  by  a  suit  in  which 
the  defendant,  being  a  non-resident,  is  brought  into  court 
by  publication.  The  well-settled  rule  that  action  to  quiet 
title  is  a  suit  in  equity;  that  equity  acts  on  the  person; 
and  that  the  person  is  not  brought  into  court  by  publica- 
tion alone  does  not  apply  when  a  state  has  provided  by 
statute  for  the  adjudication  of  titles  to  real  estate  within 
its  limits  as  against  non-residents,  who  are  brought  into 
court  only  by  publication."  In  the  case  is  a  full  general 
discussion  of  the  principle  as  applicable  to  the  classes  of 
cases  above  stated  to  be  valid  procedure  under  publication. 

A  late  signal  decision  sustains,  probably  exceeds,  the  just 
power  of  the  state  to  settle  and  quiet  title  to  lands  without 
regular  suit  on  publication.  An  act  of  the  legislature 
established  a  Court  of  Registration.  Application  could 

so  Witten  v.  St.  Glair,  27  W.  Va.  762 ;  Pennoyer  v.  Neff,  95  U.  S. 
714;  Perkins  v.  Wakeham,  86  Cal.  581,  21  Am.  St.  R.  67;  Young 
v.  Upshur,  42  La.  Ann.  362,  21  Am.  St.  R.  385;  U.  S.  v.  Fox,  94 
U.  S.  315;  Arndt  v.  Griggs,  134  U.  S.  316;  Adams  v.  Cole,  95  Mo. 
501,  6  Am.  St.  R.  74;  Mellen  v.  Moline  Iron  Works,  131  U.  S.  352; 
Wunstel  v.  Laundry,  39  La.  Ann.  312. 


THE     FOURTEENTH     AMENDMENT.  269 

be  filed  with  it  specifying  the  land,  stating  outstanding 
known  interests  in  it,  the  name  of  the  occupant  of  the  land, 
and  names  of  occupants  of  adjoining  land.  A  descrip- 
tion of  the  land  should  be  filed  in  the  registry  of  deeds. 
The  case  is  then  sent  to  an  examiner  to  investigate  and  re- 
port to  the  court.  If  that  examiner  reports  that  the  ap- 
plicant has  good  title  to  the  land,  or  if  adverse  claim  ex- 
ists, a  publication  is  made  in  a  newspaper  to  all  known  to 
have  an  interest  to  come  forward  and  claim,  and  also  to 
adjoining  owners  "and  all  whom  it  may  concern";  and 
a  copy  is  mailed  to  every  known  one  named  in  the  notice, 
and  a  copy  is  posted  on  the  land.  The  act  declared  that 
the  decree  of  registration  "shall  bind  the  land  and  be  con- 
clusive upon  and  against  all  persons,"  named  or  not  in  the 
notice.  It  was  said  to  deprive  owners  of  property  without 
due  process  of  law;  but  the  court  said  that  the  proceed- 
ing was  in  nature  in  rem,  "and  that  if  it  did  not  satisfy 
the  constitution,  a  judicial  proceeding  to  clear  title  against; 
all  the  world  is  hardly  possible ;  for  the  very  meaning  of 
such  proceeding  is  to  get  rid  of  unknown  as  well  as  known 
claims — indeed,  certainly  against  the  unknown  may  be 
said  to  be  its  chief  end — and  unknown  claims  can  not 
be  dealt  with  by  any  service  on  the  claimant."  The  court 
said  that  the  fact  that  the  proceeding  had  never  before 
been  heard  of  made  no  difference  as  to  due  process ;  that  it 
was  in  rem  to  clear  title,  and  a  valid  procedure.  The  opin- 
ion is  strong  and  well  deserves  to  be  read  for  its  perspic- 
uous presentation  of  the  subject  under  discussion.  The  act 
was  assailed  as  violative  of  the  Fourteenth  Amendment, 
but  the  court  strongly  asserts  that  ancient  remedies  are 
not  impaired  by  that  amendment.  The  case  goes  quite 


260  RIGHTS    AND    PRIVILEGES    UNDER 

far,  but  I  suppose  it  is  tenable  under  principles  above 
stated.31 

The  Supreme  Court  of  Ohio  apparently  took  another 
vieAv  in  a  case32  before  it  involving  what  is  known  as  the 
-"Torrens  Law/7  a  statute  to  quiet  title  and  simplify  reg- 
istration by  a  short  registry.  It  provided  for  filing  with 
the  recorder  an  application  for  registration,  giving  de- 
scription of  the  land,  naming  adverse  claimants,  incum- 
brancers,  occupants  and  adjoining  occupants,  and  for  pub- 
lication in  a  newspaper  of  notice  "To  whom  it  may  con- 
cern77 of  the  filing  of  the  application  and  a  warning 
to  appear  before  the  court  and  make  claim,  which  notice 
was  served  on  those  persons  resident  in  the  county,  and 
mailed  to  others  elsewhere.  When  registry  was  ordered, 
it  cut  off  all  adverse  claim  to  the  land.  The  court  held 
the  act  unconstitutional  as  depriving  persons  of  property 
without  due  process  of  law. 

Forfeiture  of  Land  for  Taxes. — Upon  the  same  princi- 
ples of  proceedings  quasi  in  rem  may  be  based  and  vin- 
dicated the  West  Virginia  legislation  providing  for  the 
sale  of  land  as  forfeited  for  failure  to  enter  it  for 
taxation,  or  to  pay  taxes  actually  assessed  thereon,  through 
a  suit  in  equity  with  publication  to  all  persons  interested, 
the  legislation  declaring  that  the  decree  condemning  the 
the  land  as  forfeited  and  subject  to  sale  shall  bind  all 
claimants.  The  legislation  referred  to  will  be  found  in 
Chapter  105  of  the  West  Virginia  Code  of  1891,  reenacted 
in  Acts  of  1893,  page  57.  It  was  attacked  as  violating 
the  state  constitution  and  the  Fourteenth  Amendment  of 

siTyler  v.  Judges  of  Registration   (Mass.),  55  N.  E.  812. 
32  State  v.  Gilbert,  56  Ohio  St.  575;  People  v.  Simon,  176  111.  165. 
contra. 


THE    FOURTEENTH     AMEXDMENT.  261 

the  federal  Constitution  in  depriving  land-owners  of 
property  without  due  process  of  law;  but  the  attack 
upon  the  said  legislation  has  been  overruled,  and  the  leg- 
islation held  to  be  consistent  with  state  and  federal  con- 
sti  tut  ions  by  the  state  and  national  Supreme  Courts.33 
In  both  courts  emphasis  was  placed,  as  going  far  to  val- 
idate the  statute  procedure,  upon  the  fact  and  feature  of 
the  statute  that  the  sale  to  enforce  the  forfeiture  was  by 
a  chancery  suit  inter  paries,  and  that  notice  was  given  of 
the  proceeding  by  service  of  process  and  and  publication, 
so  that  the  parties  had  opportunity  to  defend  their  rights 
and  resist  the  alleged  forfeiture.  Justice  Harlan,  in  de- 
livering the  opinion  of  the  Supreme  Court  of  the  United 
.States,  laid  great  stress  upon  that  feature  of  the  case. 
There  has  been  much  question  about  the  constitutionality 
under  the  Fourteenth  Amendment  of  the  provisions  of 
the  West  Virginia  constitution  and  statute  forfeiting  lands 
for  failure  of  the  owner  to  have  them  charged  with  taxes 
on  the  land  books,  it  being  alleged  that  the  state  consti- 
tution and  statutes  ipso  facto  from  such  non-entry  for- 
feited the  land  and  vested  the  owner's  title  in  the  state, 
without  any  judicial  ascertainment  of  the  delinquency  of 
its  owner,  and  that  this  forfeiture  was  a  deprivation  of 
his  property  without  due  process  of  law.  But  this  con- 
tention has  been  met  in  the  cases  cited  by  the  answer  that 
under  the  process  adopted  by  the  state  through  a  chancery 
suit  for  the  declaration  of  the  forfeiture  and  the  sale  of 
the  land,  the  owner  has  his  day  in  court  to  contest  the 
fact  of  forfeiture  and  exculpate  his  land  from  it.  So  this 

33  State  v.  Sponaugle,  45  W.  Va.  415,  S2  S.  R  283 ;  King  v.  Mul- 

lin>.  171  U.  S.  404. 


262  RIGHTS    AND    PRIVILEGES    UNDER 

matter  has  been  set  to  rest.     Both  forfeiture  and  sale  pro- 
cess have  been  held  valid.     Legislation  in  Virginia  many 
years  prior  to  the  Fourteenth  Amendment  existed  in  re- 
peated acts  forfeiting  large  areas  of  land  for  the  non- 
payment of  taxes  assessed  thereon,  or  for  the  failure  of 
owners  to  enter  it  for  taxation.     The  proceeding  for  the 
sale  of  such  land  as  forfeited  was  not  a  proceeding  by 
suit  inter  paries,  but  simply  an  ex  parte  proceeding  to 
sell  the  land,  without  any  provision  for  hearing  the  own- 
er; indeed,  it.  was  he]d  that  he  had  no  right  to  a  hear- 
ing.34    The  Virginia  courts  in  several  cases35  held  that 
the  Virginia  statutes  proprio  vigore,  without  office  found 
or  any  inquisition  judicial  in  its  nature,  forfeited  the  land 
and  invested  the  state  with  its  title,  and  that  such  statutes 
were  constitutional.     It  is  true  that  those  decisions  ante- 
dated the  Fourteenth  Amendment,  but  there  was  in  the 
Virginia  constitution  the  provision  that  no  one  should  be 
deprived  of  his  property  without  due  process  of  law.     As 
stated  in  the  cases  of  State  v.  Sponaugle  and  King  v.  Mul- 
lin,  supra,,  such  forfeiting  statutes  had  been  long  and  fre- 
quently resorted  to  by  the  state  of  Virginia  as  a  means 
and  ordinary  process  for  the  enforcement  of  payment  of 
her  taxes,  and  under  the  strong  powers  of  a  state  on  the 
subject  of  taxation  those  statutes  were  ancient,  ordinary, 
usual  and  due  process  for  the  enforcement  of  her  rights 
against  delinquent  taxpayers  long  before 'the  coming  of 

s*  McClure  v.  Maitland,  24  W.  Va.  561 ;  McClure  v.  Mauperture, 
29  W.  Va.  633. 

35  Wild  v.  Serpell,  10  Grat.  405;  Statts  v.  Board,  10  Grat.  400; 
Levasser  v.  Washburn,  11  Grat.  572;  Usher  v.  Pride,  15  Grat.  190. 
See  Armstrong  v.  Morrill,  14  Wall.  120. 


THE    FOURTEENTH     AMENDMENT.  263 

the    Fourteenth    Amendniert,    and    were    not    impugned 
by  it. 

Judgment  against  Corporations  on  Leaving  Summons  with 
Register  of  Deeds,  though  authorized  by  statute,  is  not  by 
due  process  under  the  Fourteenth  Amendment.36 

Alimony,  Decree  for,  without  service  of  process  inside 
of  the  state,  though  service  be  made  outside  of  the  state, 
is  void,  and  not  due  process  under  the  Fourteenth  Amend- 
ment.37 

Specific  Performance  of  Contract  to  Convey  Land  may  be 
decreed  against  a  non-resident,  without  personal  service 
of  process,  on  mere  publication  of  notice,  and  the  pro- 
ceeding is  valid  and  due  process.  This  is  so  upon  prin- 
ciples fully  stated  above,  it  being  a  proceeding  in  rent,  a 
suit  to  recover  the  land  sometimes,  and  at  any  rate,  a  suit 
to  secure  title  to  the  land  within  the  state.38 

Probate  of  Wills  is  an  action  in  rem,  and  though  entirely 
ex  parie,  and  without  service  of  process,  and  even  without 
publication,  is  due  process  in  such  case;  was  so  held 
long  before  the  Fourteenth  Amendment,  and  the  order  of 
probate  is  binding  on  the  world.39  It  might  seem  that  r 
probate  sentence  for  or  against  the  validity  of  a  will  for* 
ever  binding  anyone  interested,  who  being  absent  in  dis-  1 
tant  parts,  never  heard  of  the  motion  for  probate,  would 
be  undue  process;  but  the  authorities  hold  that  a  sen- 
tence either  probating  or  refusing  to  probate  a  will  is 
final  and  conclusive  upon  everybody,  whether  adults  or 


v.  Providence  Co.    (Wis.),  82  N.  W.  308. 
STElmendorf  v.  Elmendorf,  44  Atl.  164;  Coger  v.  Coger,  35  S.  E. 
823:  Bunnel  v.  Bunnel,  25  Fed.  214. 
•sBoswell  v.  Otis,  9  How.  336. 
soGaines  v.  Fuentes,  92  U.  S.  21. 


264  RIGHTS    AND    PRIVILEGES    UNDER 

infants,  married  women  or  others,  unless  statute  law  other- 
wise provide.  The  authorities  say  that  this  is  so,  because 
the  proceeding  is  one  in  rem.  I  cite,  in  addition  to  the 
authorities  given  above,  others  in  the  footnote.40 

Estrays. — Statutes  giving  estrays  to  the  finder  are  valid. 
The  proceeding  is  an  ancient  one  under  the  common  law, 
and  is  in  nature  in  rem.41 

Judgment  in  one  State  no  Lien  in  Another,  even  where 
process  was  personally  served,  and  the  judgment  is  one 
in  every  respect  binding  and  constitutes  a  lien  in  the  state 
where  rendered.  If  it  were  a  lien  in  another  state,  that 
would  be  to  give  one  state  jurisdiction  and  power  over 
property  in  another,  which  can  not  be.  2s~or  can  execution 
issue  upon  the  judgment  in  the  state  where  rendered  to 
run  into  and  be  levied  in  another  state,  as  that  would  vio- 
late the  fundamental  rule  that  judicial  process  of  one 
state  can  not  have  force  in  another,  as  the  law  and 
adjudication  of  one  state  can  have  no  extra-territorial 
force,  because  that  would  infringe  upon  the  sovereignty 
of  another  state.  The  judgment  is  only  a  simple  contract 
debt  in  the  second  state.  If  it  is  desired  to  enforce  that 
judgment  in  other  states,  there  must  be  suit  in  other  states 
on  the  judgment  to  obtain  a  judgment  upon  it,  in  order 
to  create  a  lien  or  have  process  of  execution  in  other  states. 
The  faith  and  credit  given  to  the  judgment  by  Article  IV 
in  another  state  is,  that  if  the  court  of  the  judgment  had 
jurisdiction,  that  judgment  is  conclusive  evidence  of  the 

4<>Schultz  v.  Schultz,  10  Grat.  358;  Ballou  v.  Hudson,  13  Grat. 
672;  3  Redf.  on  Wills,  63;  Young's  Will,  123  N.  C.  358,  31  S.  E. 
626;  Carpenter  v.  Bailey  (Gal.),  60  Pac.  162. 

4i  Campbell  v.  Evans,  45  N.  Y.  350. 


THE    FOURTEENTH     AMENDMENT.  265 

liability,  and  precludes  a  re-trial  or  re-investigation  of 
the  merits  of  the  cause  of  action.  Beyond  this  it  would 
not  be  due  process  of  law.42 

Publication  as  to  Unknown  Claimants  of  land  in  actions 
to  try  adverse  claims  or  quiet  title,  or  to  affect  the  land 
itself  binds  them,  and  the  decree  or  judgment  is  valid, 
because  the  proceeding  is  in  rent.4* 

Decree  for  Execution  of  a  Deed — If  the  defendant  is 
personally  before  the  court,  a  decree  requiring  him  to 
execute  an  instrument  which  will  pass  title  to  land  situate 
in  another  state  is  valid  and  due  process.  It  is  the  deed, 
not  the  decree,  that  operates  on  the  property  and  passes 
the  title.44  But  it  seems  from  the  cases  cited  that  the 
deed  must  be  made  by  the  party  himself,  and  not  by  a 
commissioner  or  other  agent  of  the  court  appointed  by  the 
decree  to  make  such  deed,  as  that  would  be  only  the  decree 
operating  beyond  the  state. 

Service  of  Process  Outside  the  State  issuing  it  is  ranked 
simply  as  publication  in  a  newspaper,  or  by  posting,  is 
only  in  lieu  of  publication,  has  no  more  force  than  pub- 
lication, and  gives  no  right  to  enter  personal  judgment. 
Process  can  not  run  outside  of  a  state,  and  has  no  manda- 
tory force  to  require  the  defendant  to  attend  the  court.45 
But  it  is  "due  process,"  as  several  times  stated  above,  to 
affect  property  in  the  state,  as,  for  instance,  a  suit  to  en- 

42McElmoyle  v.  Cohen,  13  Pet.  312;  Carter  v.  Bennett,  6  Fla. 
214. 

«  Shepherd  v.  Ware,  46  Minn.  174,  24  Am.  St.  R.  212. 

"  Watkins  v.  Holman,  16  Pet.  67 ;  Wilson  v.  Braden,  47  W.  Va. 
. — ;  Dickinson  v  .Hoomes,  8  Grat.  410. 

45Harkness  v.  Hyde,  98  U.  S.  476;  York  v.  Texas,  73  Tex.  651. 


266  RIGHTS    AND    PRIVILEGES    UNDER 

force  a  lien,  or  any  in  rem  proceeding,  if  notice  not  too 
short;  not  good  if  too  short.46 

Garnishment  in  State  of  Debtor  of  a  Debt  due  to  a  Kesi- 
dent  of  Another  State  is  valid  due  process  to  take  the  debt 
from  the  garnishee's  creditor,  and  protect  the  garnishee 
from  an  action  by  his  creditor.  It  is  a  proceeding  in  rem 
in  the  state  of  garnishment,  and  is  valid  under  the  Four- 
teenth Amendment  as  due  process,  and  the  judgment  is 
.entitled  to  the  same  force  in  other  states  which  it  has  in 
the  state  of  garnishment,  as  to  the  debt,  under  Article  IV, 
Section  1,  of  the  federal  Constitution.47  There  are  some 
cases  denying  this  proposition,  holding  that  the  situs  of 
the  debt  is  not  in  the  state  of  the  garnishee,  but  in  the 
state  of  the  other  debtor,  the  garnishee's  creditor,  and 
therefore  there  can  be  no  proceeding  in  the  state  of  the 
residence  of  the  garnishee  that  can  affect  the  creditor  of 
that  garnishee  for  want  of  jurisdiction.  I  think,  how- 
ever, that  those  cases  just  cited  hold  the  better  doctrine. 
They  hold  that  the  situs  of  the  debt  is  in  the  state  where 
the  garnishee  owing  the  debt  resides,  and  that  it  is  there 
subject  to  garnishment  in  the  courts  of  that  state  as  prop- 
erty located  in  it.  The  author  expressed  his  views  in  a 
dissenting  opinion  in  Stewart  v.  Northern  Company,48 
saying:  "The  justice  in  Ohio  had  jurisdiction  and  au- 
thority under  the  law  of  Ohio  to  render  the  judgment 
against  the  garnishee.  This  is  not  denied.  This  judg- 
ment had  the  effect  there  to  protect  the  defendant  against 

46  Roller  v.  Holly,  176  U.  S.  398,  20  Sup.  Ct.  410. 

47  Chicago,  etc.  Co.  v.  Sturm,  174  U.  S.  710;  King  v.  Cross,   175 
U.  S.  396,  20  Sup.  Ct.  131. 

4845  W.  Va.  734,  742,  32  S.  E.  222. 


TEE    FOURTEENTH     AMENDMENT.  267 

a  suit  by  Mrs.  Stewart  (resident  in  West  Virginia)  to 
make  him  pay  the  money  again.  Having  this  force  in 
Ohio,  it  must  have  the  same  force  in  every  state,  under 
the  United  States  Constitution,  providing  that  'full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records  and  judicial  proceedings  of  every  other  state/ 
and  the  act  of  Congress  under  it  that  judgments  in  a  court 
of  one  state  'shall  have  such  faith  and  credit  given  them 
in  every  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  of  the  state  from  which  they 
are  taken.'  We  do  not  go  behind  the  Ohio  judgment  to 
see  on  what  contract  in  favor  of  the  creditor  it  was  ren- 
dered, whether  good  or  bad,  void  or  not,  because  the  only 
question  is:  Had  the  court  jurisdiction,  and  did  it  give 
judgment  protecting  the  garnishee  there  ?  1  Greenl.  Ev. 
§548.  'It  is  a  question  of  constitutional  obligation,  not 
of  state  policy,  whether  our  courts  will  enforce  a  judgment 
of  another  state  court  of  competent  jurisdiction  having 
jurisdiction  in  the  case.  When  a  judgment  or  decree  of 
the  court  of  another  state  is  sought  to  be  enforced  in  this 
state  the  court  in  this  state  may  inquire  into  the  jurisdic- 
tion of  the  court  which  rendered  the  judgment  or  decree ; 
and  if  it  appears  that  such  court  had  no  jurisdiction  the 
judgment  or  decree  is  void ;  but  if  it  had  jurisdiction  the 
judgment  or  decree  is  valid  and  binding  in  this  state/ 
Stewart  v.  Stewart,  27  W.  Va.  167.  'The  first  question 
to  be  determined  in  regard  to  a  judgment  of  another  state, 
after  jurisdictional  inquiries  have  been  satisfactorily  an- 
swered, is,  what  is  its  effect  in  the  state  whence  it  was 
taken  ?  The  effect  which  it  has  there  is  precisely  the 
effect  which  ihust  be  accorded  to  it  in  everv  other  state. 


268  RIGHTS    AND    PRIVILEGES    UNDER 

It  must  not  be  given  any  greater  effect  than  it  had  in  the 
state  wherein  it  was  rendered.  If  the  judgment  appear 
on  its  face  to  be  harsh  and  erroneous,  it  must  be  received 
and  enforced,  irrespective  of  its  harshness.  The  pleas 
which  might  be  made  to  it  at  home,  and  those  only,  can 
be  made  to  it  in  any  other  part  of  the  Union.'  2  Freem. 
Judgm.  §575. 

The  law  is  that  it  is  not  the  domicile  of  the  owner  of  the 
debt  garnished  that  tests  the  place  of  jurisdiction  for 
garnishment,  but  the  question  whether  the  court  had  con- 
trol over  the  garnished  debtor  within  its  territory.  Moo- 
ney  v.  Manufacturing  Company,  34  U.  S.  App.  582;  18 
C.  C.  A.  421;  72  Fed.  32;  Douglass  v.  Insurance  Co., 
138  K  Y.  209  ;  33  K  E.  938.  Mrs.  Stewart  could  sue  the 
company  in  Ohio,  and  therefore  it  could  be  garnished 
there.  'Foreign  corporations  are  subject  to  the  process  of 
garnishment  in  all  cases  in  which  an  original  action  may 
be  commenced  against  them  in  the  courts  of  this  state  to 
recover  the  debt  in  respect  to  which  the  garnishment  pro- 
cess is  served.  ...  A  foreign  corporation  doing  busi- 
ness within  the  state  may  generally  be  made  a  garnishee 
in  that  state  when,  by  the  laws  of  the  state,  service  of  pro- 
cess may  be  properly  made  upon  it  therein ;  when  accord- 
ing to  the  jurisdictional  rule,  the  debt  is  payable  within 
the  state,  or  the  corporation  has  within  its  control  prop- 
erty belonging  to  the  principal  defendant.'  2  Shinn, 
Attachm.  §493.  'When  there  is  a  seizure  of  the  defend- 
ant's property  at  the  commencement  of  the  action,  or, 
in  garnishment,  what  is  equivalent  to  seizure  at  that  time, 
namely,  service  of  process  upon  the  garnishee,  accom- 
panied in  both  cases  by  publication  or  other  form  of  sub- 


THb'     POUttTtiFNTH     AMENDMENT.  269 

stituted  service  against  a  non-resident  defendant,  it  is  well 
settled  that  such  process  is  due  process  of  law  in  attain- 
ment suits,  and  that  a  judgment  so  rendered  will  divest 
the  defendant  of  his  title  to  such  property,  and  will  pro- 
tect the  garnishee  from  the  danger  of  double  payment.' ' 
Keno,  Xon-Res.  §241.  See  Molyneux  v.  Seymour,  76 
Am.  D.  671. 

2  Black,  Judgment,  §852,  says:  "The  judgment  of  a 
foreign  court  of  competent  jurisdiction,  in  a  proceeding 
in  the  nature  of  a  garnishment,  is  binding  and  conclusive 
and  affords  a  complete  protection  to  the  garnishee,  and  the 
money  paid  under  it  can  not  be  recovered  back  by  the 
original  owner  of  the  debt  in  any  action  in  another  coun- 
try." Garnishment  is  a  proceeding  in  rem,  binding  every- 
where (2  Shinn,  Attach.  §486;  76  Am.  Dec.  671;  1 
Gr^enl.  Ev.  §543)  ;  at  least  so  far  as  the  property  gar- 
nished and  its  owner  are  concerned.  "The  liability  of 
property  belonging  to  non-residents  to  be  attached  and 
sold  under  legal  process  is  determined  by  the  law  of  the 
state  in  which  the  property  is  actually  situated,  and  from 
whose  courts  the  process  issues,  and  is  not  determined  by 
the  law  of  the  state  in  which  the  owner  resides.  Hence,  in 
case  of  conflict  between  the  laws  of  these  two  state,  the  law 
of  the  former  governs."  Reno,  Xon-Res.  §148.  "Where, 
however,  the  garnishee  is  a  resident  of  the  state,  the  fact 
that  the  principal  debtor  is  a  non-resident  will  not  affect 
the  validity  of  the  garnishment  proceedings,  because  at- 
tachments are  permitted  against  non-resident  debtors.  And 
the  fact  that  the  principal  defendant  is  served  by  publi- 
cation only  has  no  effect  upon  the  jurisdiction  of  the  court, 
when  the  property  or  debt  is  within  the  power  of  the 


270  RIGHTS    AND    PRIVILEGES    UNDER 

court;  that  is  to  say,  where  the  property  is  within  the 
jurisdiction  of  the  court,  or  the  debt  is  payable  therein.77 
2  Shinn,  Attach.  §861. 

The  majority  of  the  court  in  the  case  of  Stewart  v. 
Northern  Assurance  Company,  just  cited,  held  that  the 
contract  of  Mrs.  Stewart  was  void  under  the  laws  of  West 
Virginia  because  she  was  a  married  woman,  and  there- 
fore it  could  not  be  enforced  against  her  by  garnishment 
of  her  debtor  in  Ohio.  As  to  this  feature  the  author 
said:  "This  is  no  matter.  The  question  is  the  force  of 
the  Ohio  judgment  in  Ohio.  Eev.  Stat.  of  Ohio,  §§4996, 
5319,  authorize  judgments  on  married  women's  contracts. 
Thus,  the  judgment  is  not  void  there.  .  .  In  West  Va., 
in  Black  v.  Smith,  13  W.  Va.,780,  held  that  'when  a  court 
of  law  in  the  state  of  Maryland,  having  jurisdiction  of 
the  subject  and  person  of  the  citizen,  renders  judgment 
in  a  cause  therein  pending  against  such  citizen  for 
money,  the  validity  of  such  judgment  can  not  be  ques- 
tioned in  the  courts  of  this  state;  nor  will  the  courts  of 
this  state  look  into  the  transaction  upon  which  the  Mary- 
land judgment  is  founded,  in  order  to  ascertain  if  that 
judgment  ought  not  to  have  been  rendered.'  Johnson, 
President,  in  Stewart  v.  Stewart,  27  W.  Va.  173,  said: 
'But  it  is  not  on  the  ground  that  such  suits  have  been 
maintained  in  many  states  that  we  would  enforce  a  de- 
cree for  such  cause  in  our  own  courts,  nor  would  we  sus- 
tain it  because  it  agreed  with  our  policy,  nor  refuse  to 
enforce  it  here,  because  it  is  hostile  to  our  policy.  The 
reason  why  we  would  enforce  a  decree  rendered  by  a  court 
of  competent  jurisdiction  in  another  state  is  the  fact  that 


THE    FOURTEENTH     AMENDMENT.  271 

the  Constitution  of  the  United  States  requires  us  to  do 


so." 


The  author  went  on,  in  that  opinion,  to  show  that  mere 
personal  disability  would  not  affect  the  validity  of  the 
judgment,  unless  it  rendered  the  judgment  void  in  the 
state  where  it  was  rendered,  citing  2  Black,  Judg.  §888, 
and  contended  that  the  validity  or  invalidity  of  the  judg- 
ment in  Ohio  was  the  true  test. 

"Garnishment  of  a  resident  debtor  to  reach  a  debt  due 
to  a  non-resident  defendant  who  has  no  property  subject 
to  the  jurisdiction  of  the  court,  does  not  deprive  him  of 
property  without  due  process  of  law."49 

Non-Resident  Share-Holders. — It  has  been  held  that  in  a 
suit  in  a  state  court  to  ascertain  and  declare  ownership 
among  conflicting  claimants  to  shares  in  the  capital  stock 
of  a  corporation,  and  to  remove  cloud  over  the  title  to 
such  shares,  publication  to  non-resident  claimants  is  suffi- 
cient, and  due  process,  as  the  proceeding  is  one  in  rem.™ 

Criminal  Process. — Presence  of  Accused. — Principles  of 
the  common  law,  and  most  of  the  state  constitutions  and 
and  statutes,  imperatively  require,  as  an  initial  step,  be- 
fore any  further  one  in  the  process  of  conviction  of  felony, 
that  the  accused  shall  be  personally  present  to  answer  the 
indictment.  He  can  not  do  so  by  counsel.  He  must  be 
so  present  at  every  step  when  anything  material  to  his 
interests  is  done  in  his  case  down  to  and  including  final 
judgment.  In  any  case  not  felony  he  may  be  tried  upon 
such  service  of  process  as  the  state  allows,  and  judgment 
may  be  rendered  against  him  for  pecuniary  penalty, 

«  King  v.  Cross,  175  U.  S.  396,  20  Sup.  Ct.  131. 
sojellenix  v.  Huron  Copper  Co.   177  U.  S.  1. 


272  RIGHTS    AND    PRIVILEGES    UNDER 

though  he  be  not  personally  present  during  trial  or  at 
the  judgment ;  but  if  any  corporal  punishment  is  inflicted 
he  must  be  present  at  the  judgment,  though  his  presence 
during  the  trial  may  be  dispensed  with,  at  least  in  the 
Virginias  and  some  other  jurisdictions — likely  everywhere, 
in  the  absence  of  a  statute.  If  not  present  at  the  verdict 
he  is  brought  in  to  receive  judgment  by  a  writ  of  capias 
ad  audiendum  judicium.  There  can  be  no  judgment  for 
even  pecuniary  penalty  on  publication,  without  personal 
service  of  process,  to  be  good  in  the  state  where  rendered 
or  elsewhere.51  Of  course,  any  judgment  for  felony  or  for 
misdemeanor  imposing  corporal  punishment  without  the 
presence  of  the  accused  would  deprive  him  of  liberty 
without  due  process  of  law,  because  the  proceeding  would 
be  undue  and  unusual,  departing  from  the  accustomed 
procedure  in  such  cases,  and  would  violate  the  Fourteenth 
Amendment.  So  would  a  judgment  for  a  pecuniary  fine 
without  personal  service  to  answer  the  charge. 

Presence  of  Accused,  no  matter  what  the  grade  of  offense, 
though  necessary  under  circumstances  just  stated  in  the 
original  trial  court,  is  not  usual  and  is  not  required  in  an 
appellate  court  when  the  sentence  or  judgment  against 
him  is  affirmed,  in  order  to  make  that  affirmance  valid,  due 
process.  This  is  so,  because  the  case  is  not  being  tried 
upon  the  facts  upon  the  party's  deliverance  before  a  jury 
of  his  country,  as  that  has  already  taken  place.  The  ap- 

5i  1  Bishop,  Grim.  Proceed.  Sec.  265 ;  Wharton,  Grim.  PI.  &  Prac. 
Sec.  540;  Warren  v.  State,  19  Ark.  214;  68  Am.  Dec.  214  and  full 
note;  State  v.  Campbell,  42  W.  Va.  246,  24  S.  E.  875;  Barclay  v.  Bar- 
clay, 184  111.  471;  Moundsville  v.  Fountain,  27  W.  Va.  182. 


THE    FOURTEENTH     AMENDMENT.  273 

pellate  court  merely  affirms  the  judgment  already  ren- 
dered, and  does  not  render  a  new  judgment.52 

Municipal  Offense  is  triable  by  the  mayor  of  the  city  or 
town  without  a  jury,  and  is  due  process.  A  jury  has  never 
been  used  in  such  cases.  The  Fourteenth  Amendment 
does  not  change  this.53 

Limiting  Number  of  New  Trials  by  State  Statute  is  not 
in  violation  of  the  Fourteenth  Amendment.  It  is  mere 
state  regulation  of  procedure  in  its  courts,  which  is  al- 
lowed to  it.*4 

Governor  IFixing  Day  of  Execution  of  Death  Sentence,  pur- 
suant to  a  state  statute,  does  not  take  away  life  without 
due  process,  contrary  to  the  Fourteenth  Amendment.  It 
is  not  the  improper  exercise  by  the  executive  of  judicial 
power.  The  court  has  rendered  the  judgment,  the  law  has 
adjudicated  upon  the  rights  of  the  state  and  the  accused, 
the  court  function  has  been  performed,  and  the  fixing  of 
a  day  for  execution  is  simply  ministerial  action.55 

State  Constitution  Divesting  Husband's  Rights. — A  state 
constitution  or  statute  can  not  divest  a  husband  of  his 
marital  rights  vested  in  him  in  his  wife's  property  be- 
fore the  adoption  of  such  constitution  or  statute,  because 
that  would  be  to  deprive  him  of  his  actual  property  with- 
out due  process  of  law;  but  such  constitution  or  stat- 
ute may  provide  that  the  wife's  future-acquired  property 
shall  be  her  separate  estate,  free  from  the  control  or  debts 
of  her  husband,  although  the  marriage  took  place  before 

52  Schwab  v.  Bergren,  143  U.  S.  442. 

ssXatal  v.  Louisiana,  139  U.  S.  621;   Thesen  v.  McDavid,  16  So. 
321,  34  Fla.  440;  Moundsville  v.  Fountain,  27  W.  Va.  182. 
s*  Louisville,  etc.  Co.  v.  Woodson,  134  U.  S.  614. 
B5Holden  v.  Minnesota,  137  U.  S.  483. 


274  RIGHTS    AND    PRIVILEGES    UNDER 

the  adoption  of  such  constitution  or  statute  j  and  this  is  so, 
because  at  that  date  the  husband  had  no  vested  prop- 
erty.56 • 

Statutes  of  Limitation. — The  right  of  the  state  to  pass 
statutes  limiting  the  time  within  which  actions  and  suits 
shall  be  brought  for  the  recovery  of  property,  debt  or  dam- 
age is  power  which  for  centuries  has  been  exercised  by  the 
legislature  of  the  states  and  by  the  British  Parliament 
before  American  independence,  and  is  therefore  due  and 
ordinary  process  of  law,  cutting  off  rights,  which  but  for 
such  statutes  would  continue  to  exist.  Clearly,  therefore, 
the  Fourteenth  Amendment  does  not  impair  this  right. 
Suppose,  however,  the  legislature  shall  repeal  a  stat- 
ute of  limitations  as  to  any  action,  or  lengthen  its  pe- 
riod, and  thus  cut  off  defenses  good  before,  under  the 
statute  of  limitations.  Does  such  legislation  violate 
the  Fourteenth  Amendment  by  depriving  the  person  of 
property  without  due  process  of  law  ?  The  West  Virginia 
Supreme  Court  held  57  that  "where  title  to  property  has 
vested  under  the  statute  of  limitations  no  act  can,  by  ex- 
tending the  statute  or  reviving  the  remedy,  impair  such 
title.  It  would  be  unconstitutional,  because  depriving 
one  of  property  without  due  process  of  law ;  but  where  the 
demand  is  on  contract,  or  any  class  of  actions  where  the 
statute  merely  gives  a  defense,  and  does  not  vest  property, 
there  is  no  vested  right  to  such  mere  defense,  and  the  leg- 
islature may,  by  repeal  of  the  statute  or  otherwise,  revive 
the  action,  and  deprive  one  of  such  defense."  The  dis- 
tinction there  made  is,  I  think,  well  founded,  though,  as 

66  Allen  v.  Hanks,   136  U.  S.  300. 

"McEldowney  v.  Wyatt,  44  W.  Va.  711,  30  S.  E.  239. 


TUB    FOURTEENTH     AMENDMENT.  275 

stated  in  the  opinion,  perhaps  the  preponderance  of  au- 
thority does  not  make  that  distinction,  but  goes  to  the 
proposition  that  whether  it  is  a  case  where  title  to  prop- 
erty has  vested  under  the  statute  or  is  a  mere  defense 
against  action  on  contract  or  tort  which  has  matured,  that 
defense  can  not  thus  be  taken  away.  The  United  States 
Supreme  Court,  however,  makes  such  distinction,  holding 
that  a  repeal  of  the  statute  cutting  off  a  defense  against 
a  debt  does  not  deprive  of  property  contrary  to  the  Four- 
teenth Amendment.58 

The  opinion  by  Justice  Miller  says :  "By  the  long  and 
undisturbed  possession  of  tangible  property,  real  or  per- 
sonal, one  may  acquire  a  title  to  it,  or  ownership  superior 
in  law  to  that  of  another,  who  may  be  able  to  prove  an 
antecedent  and,  at  one  time,  paramount  title.  The  su- 
perior or  antecedent  title  has  been  lost  by  the  laches  of 
the  person  holding  it,  in  failing  within  a  reasonable  time 
to  assert  it  effectively;  as,  by  resuming  the  possession  to 
which  he  was  entitled,  or  asserting  his  right  by  suit.  What 
the  primary  owner  has  lost  by  laches  the  other  party  has 
gained  by  continued  possession  without  question  of  his 
right.  This  is  the  foundation  of  the  doctrine  of  prescrip- 
tion, a  doctrine  which,  in  the  English  law,  is  mainly  ap- 
plied to  incorporeal  hereditaments,  but  which,  in  the  Ko- 
man  law,  and  the  codes  founded  on  it,  is  applied  to  prop- 
erty of  all  kinds.  .  .  . 

Possession  has  always  been  a  means  of  acquiring  prop- 
erty. It  was  the  earliest  mode  recognized  by  mankind 
of  the  appropriation  of  anything  tangible  by  one  person 

"Campbell  v.  Holt,  115  U.  S.  620. 


276  RIGHTS    AND    PRIVILEGES    UNDER 

to  his  own  use,  to  the  exclusion  of  others,  and  legislators 
and  publicists  have  always  acknowledged  its  efficacy  in 
confirming  or  creating  title.  The  English  and  American 
statutes  of  limitation  have  in  many  cases  the  same  effect, 
and  if  there  is  any  conflict  of  decision  on  the  subject,  the 
weight  of  authority  is  in  favor  of  the  proposition  that 
where  one  has  had  peaceable,  undisturbed,  open  posses- 
sion of  real  or  personal  property,  with  an  assertion  of 
ownership,  for  the  period  which,  under  the  law,  would 
bar  an  action  for  its  recovery  by  the  real  owner,  the  former 
has  acquired  a  good  title — a  title  superior  to  that  of  the 
latter,  whose  neglect  to  avail  himself  of  his  legal  right 
has  lost  him  his  title.  It  may,  therefore,  very  well  be 
that,  in  an  action  to  recover  real  or  personal  property, 
where  the  question  is  as  to  the  removal  of  the  bar  of  the 
statute  by  legislative  act  passed  after  the  bar  has  become 

v  O  , 

perfect,  such  act  deprives  the  party  of  his  property  with- 
out due  process.  The  reason  is  that  by  the  law  in  exist- 
ence before  the  repealing  act,  the  property  had  vested  in 
the  defendant.  .  .  But  we  are  of  the  opinion  that  to  re- 
move the  bar  which  statutes  of  limitation  enable  a  debtor 
to  interpose  to  prevent  the  payment  of  his  debt  stands  on 
very  different  ground." 

Suppose,  next,  that  the  legislature  shortens  the  period 
of  limitation,  and  thus  destroys  a  right  to  recover  prop- 
erty, or  debt  on  contract,  or  damages  for  a  tort,  which 
right  was  alive  at  the  date  of  that  act.  The  right  to  re- 
cover in  any  one  of  the  cases  is  a  vested  right  of  property. 
The  legislature  can  pass  retrospective  acts,  and,  it  may  be 
said,  can  even  destroy  vested  property,  in  the  absence  of 


THE    FOURTEENTH     AMENDMENT.  277 

hindrance  by  constitutional  restraint;59  but  there  is  the 
state  constitution  and  the  federal  prohibiting  any  act  to 
impair  a  contract  or  to  take  away  property  without  due 
process  of  law.  The  Fourteenth  Amendment  does  the 
latter,  and  both  federal  and  state  constitutions  prohibit 
the  impairment  of  a  contract  by  law.  Such  an  act  short- 
ening the  period  of  limitation  active  upon  existing  rights 
of  action,  if  construed  to  be  retroactive,  or  so  in  express 
words,  is  a  violation  of  the  state  constitutions  and  the 
Fourteenth  Amendment,  unless  it  gives  a  reasonable  time 
within  which  to  bring  suit  upon  such  existing  causes  of 
action  for  property,  for  debt  or  other  contract,  or  for  dam- 
ages for  torts.  The  Supreme  Court  holds  that  consistently 
with  the  Fourteenth  Amendment  the  state  legislature  may 
prescribe  a  limitation  for  an  action  where  none  was  be- 
fore, or  shorten  the  time  within  which  suits  on  existing 
rights  of  action  must  be  brought,  "provided  a  reason- 
able time,  taking  all  the  circumstances  into  considera- 
tion, be  given  by  the  new  law  for  the  commencement  of 
suit  before  the  bar  takes  effect."  60 

Several  former  cases  in  the  Supreme  Court  are  there 
cited.  If  the  act  does  give  such  time  for  bringing  suit, 
it  does  not  impair  the  obligation  of  a  contract  or  deprive 
of  property  without  due  process.  Whether  the  time  al- 
lowed for  suit  before  the  bar  of  the  new  law  applies  is 
reasonable,  depends  on  the  circumstances.  "No  one  rule 
can  be  laid  down  for  determining  as  to  all  cases  alike, 
whether  the  time  allowed  was  or  was  not  reasonable ;  that 

5»  Sedgwick,  Stat.  &  Const.  L.  166. 

«o Wheeler  v.  Jackson,  137  U.  S.  245;  Terry  v.  Anderson,  95  U.  S. 
628;  Saranac  L.  Co.  v.  Roberts,  177  U.  S.  318;  20  Sup.  Ct.  645. 


278  RIGHTS    AND    PRIVILEGES    UNDER 

fact  must  depend  upon  the  circumstances  in  each  case."61 
It  has  been  held  that  several  months  between  the  passage 
and  the  going  into  effect  of  the  new  law  will  not  do ;  that 
the  time  between  passage  and  taking  effect  of  the  act 
can  not  be  counted.62 

Validating  Void  Contracts. — It  seems  that  a  statute  vali- 
dating an  antecedent  void  contract  is  not  open  to  the  im- 
putation that  it  impairs  the  obligation  of  a  contract,  con- 
trary to  the  federal  or  state  constitution,  or  that  it  de- 
prives one  of  property  without  due  process  of  law.  An 
act  confirming  previous  loans  by  foreign  corporations  was 
held  not  unconstitutional.63 

A  void  contract  of  a  municipal  corporation  can  be  vali- 
dated by  the  legislature.64  But  how  if  it  is  a  private  con- 
tract? The  legislature  can  not  make  a  contract  binding 
on  me  which  is  not  so  in  law.  A  legislature  can  do  almost 
what  it  pleases  with  a  municipal  corporation  of  the  state ; 
it  can  make  it  pay  debts  which  otherwise  would  not  bind 
it,  as  the  legislature  can  pay  a  debt  of  the  state  which 
would  not  bind  it,  without  such  validation.  Can  it  so  act 
on  private  corporations  ?  I  doubt.  But  if  it  can  it  would 
be  on  the  theory  that  the  corporation  had  received  its  fran- 
chise from  the  state.  It  can  not  be  done.65 

Dissolving  Corporations  by  Judgment  of  State  Court  whero 
the  corporation  had  opportunity  for  full  defense  was  held 
not  to  deprive  the  corporation  of  franchise  or  property 

ei  Terry  v.  Anderson,  95  U.  S.  628. 

62  Gilbert  v.  Ackerman,  159  N.  Y.  118,  45  L.  R.  A.  118. 

63  Gross  v.  U.  S.  Mortg.  Co.   108  U.  S.  477. 

64  Steel  Co.  v.  Erskine,  98  Fed.   (C.  C.  A.),  215. 

65  Farmers'  Bank  v.  Gunnel,  26  Grat.  131. 


THE    FOURTEENTH     AMENDMENT.  279 

without  due  process  of  law.66  The  power  of  courts,  for 
non-user  or  mis-user  of  franchise  by  a  corporation,  to  dis- 
solve it  was  well  established  long  before  the  Fourteenth 
Amendment. 

Private  Mill. — An  act  granting  right  to  a  man  to  build 
a  mill  on  his  own  land,  paying  damages  to  owners  of  lands 
flooded  thereby,  was  held  not  to  deprive  such  owners  of 
property  without  due  process.67 

Act  Regulating  Contest  for  Election  held  not  to  take  away 
life,  liberty  or  property  without  due  process  of  law.68 

Jury  Trial  in  State  Court  is  not  a  "privilege  or  immun- 
ity" of  national  citizenship  protected  under  the  Fourteenth 
Amendment.69 

Disbarring  Attorney. — This  is  not  a  criminal  case  giv- 
ing a  right  to  a  trial  by  jury,  but  is  a  proceeding  to  pro- 
tect the  court  from  official  ministration  of  persons  unfit 
to  practice  as  attorneys,  and  it  does  not  invade  the  con- 
stitutional provision  that  no  person  shall  be  deprived  of 
life,  liberty  or  property  without  due  process ;  but  the  pro- 
ceeding itself  (by  rule  to  show  cause  why  the  attorney 
should  not  be  disbarred)  is  itself  due  process,  because  long 
used  as  usual  procedure  in  such  case.70 

Board  to  Assess  Railroad  Taxes. — Such  assessment  need 
not  be  made  by  a  court,  but  may  be  made  by  officers  of  the 
state  or  a  board  of  persons  constituted  therefor  expressly 
by  an  act  of  the  legislature.  This  process  is  due  proc- 
ess in  such  case,  though  the.  act  does  not  require  notice  to 

6«  Chicago  Life,  etc.  Co.  v.  Needles,  113  U.  S.  574. 
67  Head  v.  Amoskeag,  113  U.  S.  9. 
«s  Kennard  v.  Louisiana,  92  U.  S.  480. 

\\alker  v.  Sauvinet,  92  U.  S.  90;  Chappell,  etc.,  Co.  v.  Sulphur 
Mines  Co.,   172  U.  S.  474. 

TO  fa  parte  Wall.  107  U.  S.  265. 


280  RIGHTS    AND    PRIVILEGES    UNDER 

the  railroad  company  before  the  assessment  becomes  final, 
as  the  statute  fixes  the  time  and  place  of  the  meeting  of  the 
board;  nor  though  the  act  does  not  require  the  board  to 
grant  a  hearing  for  correction  of  errors,  as  by  the  con- 
struction of  the  act  by  the  state  Supreme  Court  a  right 
to  hearing  is  given;  nor  for  want  of  notice  to  be  heard 
after  determination  by  the  board,  as  re-hearing  is  not  nec- 
essary.71 

Condemnation  of  Property  for  Public  TIse. — The  Four- 
teenth Amendment  applies  to  proceedings  for  the  condem- 
nation of  property  for  public  use  instituted  after  its  adop- 
tion, though  under  a  statute  passed  before  that  amend- 
ment.72 

Act  Prescribing  Additional  Punishment  on  Second  Convic- 
tion.— In  almost  all  the  states  we  find  statutes  leveled 
against  habitual  criminals  imposing  additional  punish- 
ment on  those  convicted  of  crime  more  than  once.  Such 
legislation  has  been  held  not  to  deny  the  equal  protec- 
tion of  the  law  guaranteed  by  the  Fourteenth  Amend- 
ment.73 

Imprisonment  of  Inebriates  in  Sanatarium,  by  virtue  of  a 
statute  for  their  treatment  and  reformation,  where  the  or- 
der of  confinement  is  in  the  absence  of  the  party  and  with- 
out notice  to  him,  is  not  due  process  of  law,  such  commit- 
ment being  final  and  not  temporary  only  to  restrain  the 
person  during  period  of  danger.  And  it  makes  no  differ- 
ence that  the  statute  reserves  .the  right  to  review  the  order 
of  commitment  by  habeas  corpus,  this  not  being  due  proc- 

fiPittsburg,  etc.  Co.  v.  Backus,  154  U.  S.  421,  438. 
"Kaukana,  etc.  v.  Green  Bay,  142  U.  S.  254. 
73McDonold  v.  The  Commonwealth,  173  Mass.  322. 


THE    FOURTEENTH     AMENDMENT.  281 

ess,  as  that  term  means  process  before  final  judgment.  It 
is  not  valid  as  a  temporary  commitment,  as  no  investiga- 
tion after  such  commitment  to  ascertain  the  party's  con- 
dition is  directed  by  statute.  It  was  held  that  there  might 
be  temporary,  summary  commitment  in  the  case  of  a  dan- 
gerous or  incompetent  person,  as  in  the  case  of  alleged 
criminals  held  in  confinement  until  they  are  tried;  and 
the  constitutional  provision  for  due  process  does  not  ex- 
clude proper  and  reasonable  police  regulations  as  to  tem- 
porary confinement  until  trial.74 

Cigarettes,  Sale  of. — A  city  ordinance  may  require  li- 
cense to  sell  cigarettes  and  prohibit  their  sale  within  two 
hundred  yards  of  a  schoolhouse.  Such  an  ordinance  does 
not  deprive  of  liberty  without  due  process  of  law.75 

Ticket  Brokers.  A  statute  prohibited  the  sale  of  pas- 
sage tickets  by  anyone  but  common  carriers,  and  it  was 
held  violative  of  the  Fourteenth  Amendment  under  the 
head  of  "liberty,"  because  it  took  away  liberty  of  con- 
tract, liberty  to  sell  a  lawful  article.  Perhaps  it  was  con- 
trary to  the  equal  protection  clause  also,  because  it  al- 
lowed common  carriers  only  to  sell  such  tickets.76 

Struck  Jury. — In  2sTew  Jersey  the  law  provides  for  the 
ordinary  jury  and  also  a  special  jury  formed  in  another 
way,  and  under  the  ordinary  jury  the  prisoner  has  twen- 
ty peremptory  challenges,  but  only  five  under  the  struck 
jury.  A  party  sentenced  to  be  hanged  for  murder  claimed 
that  his  life  was  to  be  taken  without  due  process  of  law, 

74  People    v.    St.    Saviour    Sanitarium,    34    App.    Div.    363.      See 
Evans  v.  Johnson,  23  L.  R.  A.  737,  39  W.  Va.  299,  19  S.  E.  623. 
*5  Gundling  v.  Chicago,  176  111.  340,  177  U.  S.  183,  20  Sup.  Ct.  633. 
re  People  v.  Warden,  157  N.  Y.  116,  43  L.  R.  A.  264. 


282  RIGHTS    AND    PRIVILEGED    UNDER 

contrary  to  the  Fourteenth  Amendment,  he  having  been 
tried  by  a  struck  jury ;  but  the  Supreme  Court  of  the  Unit- 
ed States  held  that  the  highest  state  court  had  decided  that 
the  statute  for  such  a  struck  jury  was  valid  under  the  state 
constitution,  which  fact  foreclosed  that  question  in  the 
national  Supreme  Court.77  The  court  said:  "The  state 
has  full  control  over  the  procedure  in  its  courts,  both  in 
civil  and  criminal  cases,  subject  only  to  the  qualification 
that  such  procedure  must  not  work  a  denial  of  fundament- 
al rights,  or  conflict  with  specific  and  applicable  provision 
of  the  federal  Constitution.  Ex  parte  Keggel,  114  U.  S. 
642 ;  Iowa,  etc.,  v.  Iowa,  160  U.  S.  389 ;  Chicago,  B.  &  Q. 
Co.  v.  Chicago,  166  U.  S.  226.  The  Fourteenth  Amend- 
ment does  not  profess  to  secure  to  all  persons  in  the  United 
States  the  benefit  of  the  same  laws  and  the  same  remedies. 
Great  diversities  in  these  respects  may  exist  in  two  states 
separated  only  by  an  imaginary  line.  On  one  side  of  the 
line  there  may  be  a  right  of  trial  by  jury,  and  on  the  other 
side  no  such  right.  Missouri  v.  Lewis,  101  U.  S.  22,  31." 
The  conviction  was  affirmed. 

Error  in  Trial — Life  Sentence — It  is  well  settled  that  a 
regular  trial,  criminal  or  civil,  in  the  due  and  orderly 
course  of  state  law,  is  due  process  under  the  Fourteenth 
Amendment,  even  though  there  be  error  in  the  proceed- 
ing, which  would  reverse  it  on  appeal  to  a  state  court, 
provided  the  judgment  be  not  utterly  void.  Hence  a  fail- 
ure to  charge  a  jury  that  it  could  find  the  prisoner  guilty 

"Brown  v.  New  Jersey,  175  U.  S.  172;  Leeper  v.  Texas,  130 
U.  S.  463. 


THE    FOURTEENTH     AMENDMENT.  283 

of  murder  either  in  the  first  or  second  degree  was  held 
no  violation  of  the  Fourteenth  Amendment.78 

Prima  Facie  and  Conclusive  Evidence  of  Guilt. — Statutes 
making  certain  evidence  or  facts  conclusive  evidence  of 
guilt  of  crime  are  held  to  violate  the  constitutional  de- 
mand for  due  process  of  law  before  life  or  liberty  can 
be  taken ;  but  this  is  not  so  if  the  statutes  make  such  evi- 
dence of  facts  only  prima  facie  evidence  of  guilt.  In  the 
one  case  the  party  may  repel  before  his  country  the  force 
of  the  state's  case,  in  the  other  his  fate  is  sealed,  and  he 
can  not  answer  such  facts  or  evidence.79 

Curative  Act  of  Void  Criminal  Proceedings  is  a  violation 
of  the  Fourteenth  Amendment  as  depriving  of  life,  liberty 
or  property  without  due  process  of  law.80  A  void  thing 
can  not  be  made  whole. 

Insane  Convict. — A  state  statute  authorizing  a  sheriff  to 
summon  a  jury  to  try  whether  a  convict  became  sane  after 
death  sentence  was  held  not  contrary  to  the  Fourteenth 
Amendment.  The  Supreme  Court  said  that  the  common 
law  did  not  give  a  trial  before  a  court  and  jury  in  such 
a  case,  and  that  as  the  highest  state  court  had  held  the 
statute  to  be  valid  state  procedure,  so  would  the  United 
States  Supreme  Court.81 

Mechanic's  Liens.— There  is  no  doubt  about  the  con- 
stitutionality of  the  statutes  found  in  almost  every  state 

78  Davis  v.  Texas,  139  U.  S.  651;   Hallinger  v.  Davis,  146  U.  S. 
314:  Lambert  Barrett,  159  U.  S.  660;  Laidley  v.  Land  Co.  159  U.  S. 
103. 

79  State  v.  Bingham,  42  W.  Va.  234,  24  S.  E.  883;  Wooten  v.  State, 
24  Fla.  335,  1  L.  R.  A.  819;  Castillo  v.  McConnico,  168  U.  S.  674; 
Meyer  T.  Berlandi,  39  Minn.  438,   12  Am.  St.  R.  663. 

80  State  v.  Doherty,  60  Me.  504. 

-i  Xobles  v.  Georgia,   168  U.  S.  398. 


284  RIGHTti    AND    PRIVILEGES    UNDER 

of  the  Union  giving  mechanics  and  materialmen  liens 
for  building  and  material  furnished  under  contract  with 
the  owner  of  the  land;  but  how  as  to  statutes  giving  sub- 
contractors, laborers  and  others  building,  laboring  or  fur- 
nishing material  to  the  contractor  under  contract  with  him, 
but  without  contract  with  the  owner  ?  Can  that  owner's 
property  be  charged  with  a  lien  and  taken  from  him  when 
he  made  no  contract  with  the  subcontractor  ?  Does  this 
deprive  him  of  liberty  and  property  without  due  process 
of  law  in  taking  away  his  right  of  contract,  in  refusing 
him  right  to  contract  or  not  to  contract  as  he  pleases,  and 
the  right,  if  he  chooses  not  to  contract,  and  has  not  con- 
tracted, to  be  exempt  from  the  imposition  of  a  liability  as 
if  he  had  contracted,  and  in  rendering  his  property  lia- 
ble for  such  burden?  Some  cases  hold  such  statutes  void 
for  these  reasons,  and  also  because  they  are  made,  not  to 
subserve  general  public  weal  and  want,  but  only  for  pri- 
vate ends,  and  thus  denying  equal  protection  of  the  law. 
The  authorities,  however,  differ.  Jones  on  Liens82  says 
that  the  constitutionality  of  those  statutes  is  well  estab- 
lished, and  cites  many  cases,  their  theory  being  that  the 
statutes  annex  the  lien  as  an  incident  to  the  contract  be- 
tween the  land-owner  and  the  main  contractor,  that  con- 
tract being  evidence  of  an  authority  of  the  contractor  to 
charge  the  owner's  property  with  liabilities  incurred  ty 
such  contractor  in  performing  the  contract.  This  does 
not  seem  to  be  a  conclusive  reason.  It  would  seem  that 
a  stronger  reason,  if  there  is  any  good  reason,  is  that  when 
he  contracts  the  owner  knows,  or  is  held  to  know,  that  the 
law  allows  a  lien  to  the  subcontractor,  and  therefore  the 
82  Vol.  2,  Sec.  1304. 


THB    FOURTEENTH     AMENDMENT.  285 

owner  contracts  with  an  eye  to  that  law.  But  those  cases 
hold  the  land  liable  to  the  subcontractor  without  regard 
to  the  state  of  accounts  between  the  owner  and  the  orig- 
inal contractor,  even  if  the  owner's  debt  has  been  paid. 
The  rule  seems  questionable.  Some  cases  hold  such  stat- 
utes void.83 

No  Jury  in  Equity. — How  comes  it  that  the  invariable 
practice  in  chancery  is  for  the  chancellor  to  decide  mat- 
ters of  fact,  whereas  matters  of  the  very  same  nature  are 
tried  in  common  law  courts  by  a  jury,  and  must  be  so  tried 
under  the  Constitution  ?  Is  this  practice  in  chancery  due 
process  of  law  ?  It  would  not  be  so  in  common  law  cases, 
but  it  is  in  equity.  It  has  been  frequently  above  stated 
that  due  process  of  law  as  required  in  the  Fourteenth 
Amendment  is  not  a  new  departure,  not  a  demand  for  any- 
thing new,  but  that  such  law  and  procedure  as  were  usual, 
established,  due  and  accustomed  and  applicable  to  all 
alike  who  were  similarly  circumstanced  when  that  amend- 
ment came,  is  still  due  process  under  it.  For  centuries 
before  the  amendment  equity  jurisprudence  and  chancery 
courts,  as  they  came  from  England,  had  existed,  and  those 
courts  tried  matters  of  fact  without  juries,  the  chancellor 
passing  on  both  fact  and  law,  unlike  common  law  courts. 
Chancery  courts  knew  no  jury,  except  in  a  few  special 
cases  of  issues  out  of  chancery  sometimes  ordered  to  set- 
tle doubtful  questions  of  fact  merely  to  "satisfy  the  con- 
science of  the  chancellor,"  not  that  the  party  had  absolute 
right  to  demand  it.  That  is  a  different  matter  from  the 
general  jury  right.  Hence,  there  is  no  want  of  due  proc- 

ss  Spry  L.  Co.  v.  Sault,  etc.  Bank,  77  Mich.  199,  18  Am.  St.  R.  396; 
Palmer  &  Crawford  v.  Crawford,  55  Ohio  St.  423. 


286  RIGHTS    AXD    PRIVILEGES    UXDER 

ess  in  cases  where,  before  a  constitution  providing  for  jury 
trial,  equity  already  had  jurisdiction  over  the  subject- 
matter,  as  in  cases  for  restraint  and  abatement  of  nuis- 
ances, partition,  fraud,  fraudulent  conveyance,  mistake, 
cancellation  of  instruments,  specific  performance,  and 
many  other  cases.84  aWhere  already,  at  the  adoption 
of  a  constitution,  equity  exercised  jurisdiction  in  certain 
matters,  the  clause  of  the  Constitution  giving  jury  trial 
does  not  relate  to  such  matters,  or  deprive  equity  of  juris- 
diction therein  to  act  without  jury."  85  But  these  cases 
show  that  where,  at  the  adoption  of  a  constitution  giving 
jury  trial  in  common  law  cases,  a  matter  was  of  such 
nature  as  demanded  a  common  law  action  with  jury  trial, 
the  legislature  can  not,  by  giving  equity  jurisdiction  over 
it,  deprive  a  party  of  jury  trial.  The  act  giving  such  ju- 
risdiction in  equity  would  be  void  and  inoperative  if  the 
party  objected.  A  late  case 86  sustains  the  proposition 
that  where  the  controversy  is  purely  of  a  legal  nature, 
there  can  not  be  jurisdiction  in  equity  depriving  a  suitor 
of  a  jury — even  a  statute  giving  such  equity  jurisdiction 
in  such  case  would  be  void.  The  case  just  cited  holds  that 
as  there  was  a  legal  remedy  for  recovery  of  land,  equity 
could  not  assume  jurisdiction,  and  thus  deny  a  jury  trial. 
This  doctrine  is  found  in  Loving  v.  Norfolk  &  Western 

8*Mugler  v.  Kansas,  123  U.  S.  623;  Merrill  v.  Bowlen,  20  R,  I. 
226;  Blanchard  v.  Rains,  20  Fla.  467;  State  v.  Saunders,  66  N.  H. 
39. 

ss  Cecil  v.  Clark,  44  W.  Va.  660,  30  S.  E.  216;  Davis  v.  Settle, 
43  W.  Va.  19,  26  S.  E.  557,  563;  Barlow  v.  Daniels,  25  W.  Va.  512; 
Eilenbeker  v.  Plymouth  Co.  134  U.  S.  31;  In  re  Debs,  158  U.  S. 
564,  594;  Pillow  v.  Improv.  Co.  23  S.  E.  32,  92  Va.  144;  State  v. 
Doherty,  16  Wash.  382;  Barclay  v.  Barclay,  184  111.  471. 

ss  Black  v.  Jackson,  177  U.  S.  349,  20  Sup.  Ct.  648. 


THE    FOURTEENTH     AMENDMENT.  287 

• 

Railroad  Company,87  holding  that  a  statute  providing  for 
the  trial  of  an  appeal  from  a  justice  involving  a  purely 
common  law  matter,  by  a  jury  of  six,  when  the  constitu- 
tion simply  calls  for  a  jury  in  trials  at  common  law,  was 
unconstitutional  and  void.  The  case  required  twelve  ju- 
rors under  the  Constitution. 

Dismissal  of  Criminal  Appeal  by  reason  of  escape  of  ac- 
cused under  an  order  that  it  be  dismissed,  unless  he  ap- 
pear and  surrender  himself  to  the  law,  is  not  without  due 
process  under  the  Fourteenth  Amendment.88 

Irrigation  of  Arid  Land. — Water  used  for  this  purpose 
is  used  for  a  public  purpose,  though  all  persons  do  not 
have  a  right  to  use  it,  if  each  land-owner  has  equal  right 
to  use  it  on  the  same  terms  as  others;  and  therefore  a 
statute  organizing  districts  for  irrigation  and  directing  as- 
sessment on  lands  to  pay  cost  of  irrigation  does  not  de- 
prive owners  of  their  property  without  due  process.  It 
is  justified  under  the  taxing  power.89 

Tax  Penalty  on  Certain  Corporations. — An  act  imposing 
a  penalty  of  fifty  percent  increase  upon  express,  telegraph, 
telephone  and  sleeping-car  companies  for  nonpayment  of 
taxes  does  not  deprive  them  of  property  without  due  proc- 
ess of  law.90 

Deposit  of  Money  as  Condition  of  Defense  against  Tax 
Deeds. — An  act  requiring  this  was  held  to  be  not  due  proc- 
ess.91 

87  35  S.  E.  962,  47  W.  Va.  — . 
ss  Allen  v.  State,  166  U.  S.  138. 
8»Fallbrook  v.  Bradley,  164  U.  S.  112. 
so  Western  Union  v.   State,   165  U.  S.  304. 

»i  Bennett  v.  Davis,  37  Atl.  864 ;  Eustis  v.  City  of  Henrietta,  39 
S.  \V.  567. 


288  RIGHTS    AND    PRIVILEGES    UNDER 

Conviction  of  Minor  Offense  Under  Indictment  for  Greater. 
— If  a  state  court  holds  that  a  conviction  of  a  minor  of- 
fense, as  assault  and  battery,  may  be  had  under  an  indict- 
ment for  a  greater  offense,  as  for  murder,  there  is  no 
want  of  due  process  of  law  under  the  Fourteenth  Amend- 
ment.92 

Condition  Precedent  to  Employment. — A  statute  prohib- 
iting a  railroad  company  from  requiring,  from  applicants 
for  employment,  as  a  condition  precedent  thereto,  that  they 
shall  waive  damages  for  personal  injury,  and  declaring 
that  such  agreements  of  waiver  should  be  void,  was  held 
to  violate  the  Fourteenth  Amendment  in  depriving  the 
parties  of  liberty  of  contract.93 

Public  Easements. — "The  Fourteenth  Amendment  does 
not  override  public  right  existing  in  the  form  of  servitudes 
or  easements  which  are  held  by  the  state  courts  to  be  valid 
under  its  constitutions  and  laws.77  94  The  taking  of  land 
for  a  levee  without  compensation  was  held  in  the  case  cited 
to  be  justified  under  the  public  easement  right,  and  was 
due  process.  The  amendment  did  not  destroy  this  ante- 
cedent right.. 

Unanimous  Verdict. — The  state  may  authorize  a  verdict 
on  less  than  a  unanimous  vote.95  The  authorities  on 
the  point  conflict.96  I  should  have  no  doubt  that  if  the 
state  were,  by  its  constitution,  to  allow  a  verdict  on  less 

»2  Moore  v.  Missouri,    159   U.   S.   673. 

»s  Shaver  v.  Pa.  Company,  71  Fed.  931. 

»*  Eldridge  v.  Trezevant,  160  U.  S.  452. 

ssMackey  v.  Ensperger,  39  Pac.  541,  11  Utah  154;  Hess  v.  White, 
24  L.  R.  A.  277. 

»«  Jacksonville,  etc.  v.  Adams,  33  Fla.  608,  24  L.  R.  A.  272,  and 
note. 


THE    FOURTEENTH     AMENDMENT.  289 

than  unanimity,  it, would  be  good,  as  relating  to  mere  pro- 
cedure in  state  courts,  which  is  a  matter  left  to  the  states, 
and  because  decisions  of  the  U.  S.  Supreme  Court  hold 
that  a  state  may  authorize  a  jury  to  be  constituted  of  less 
than  twelve;  but  where  a  state  constitution  simply  gives 
a  jury  trial,  I  doubt  the  power  of  a  legislature  to  author- 
ize a  verdict  except  by  the  concurrence  of  all  the  jurors. 
That  is  what  a  common  law  jury  trial  means,  the  verdict 
being  *an  essential  part  of  the  trial,  the  fruition  of  it. 
It  is  implied  in  the  grant  of  "trial  by  jury/'  a  verdict 
such  as  common  law  demands.  Where  the  state  consti- 
tution simply  calls  for  a  jury  trial,  a  denial  of  unanimity 
would  not  be  due  process  under  either  constitution.97  But 
as  Walker  v.  Sauvinet,  92  U.  S.  90,  holds  that  the  Four- 
teenth Amendment  confers  no  jury  right  in  a  state  court, 
the  state  law  on  the  subject  of  unanimity  governs. 

Denial  of  Criminal  Appeal. — A  state  may  give  or  deny 
it,  or  give  it  on  such  terms  as  it  chooses,  as  it  pertains  to 
mere  procedure.  It  is  no  part  of  a  trial  and  not  essential 
to  due  process  of  law  under  the  Fourteenth  Amendment.98 

Form  of  Indictment. — The  state  may  adopt  such  form 
as  it  chooses.  It  pertains  to  mere  procedure.  All  that  the 
amendment  calls  for  is  fair  trial  without  regard  to  form 
of  procedure.  The  state  may  dispense  even  with  indict- 
ment, and  proceed  on  an  information,  without  the  inter- 
vention of  a  grand  jury,  even  in  a  murder  case,  as  Hur- 

vr  American  Pub.  Co.  v.  Fisher,  166  U.  S.  464;  Loving  v.  R.  R. 
Co.  35  S.  E.  962;  47  W.  Va.  — . 

»«  Andrews  v.  Swartz,  156  U.  S.  272;  McKane  v.  Dnrston,  153  U. 
S.  684. 


290  RIGHTS    AND    PRIVILEGES    UNDER 

tado  v.  California"  and  Bolln  v.  Nebraska100  clearly  show. 
The  indictment  need  not  state  the  degree  of  murder.  It 
is  for  the  state  court  to  say  whether  the  indictment  is 
good,  whether  the  offense  with  which  the  party  is  charged 
is  one  for  which  there  can  be  a  conviction  under  the  in- 
dictment, and  whether  a  minor  degree  of  offense  can  be 
found  under  the  indictment.10 

Shooting  Dogs  by  Policemen. — A  city  ordinance  authoriz- 
ing the  shooting  of  unmuzzled  dogs,  they  being  property, 
takes  away  property  without  due  process  of  law  according 
to  Lynn  v.  State;102  but  Jenkins  v.  Ballentine103  is  con- 
Ira.  The  point  is  questionable.104  The  power  of  the  city 
to  require  muzzling  would  seem  to  be  due  police  action, 
and  the  destruction  of  the  animal  for  a  violation  of  the 
ordinance  would  likely  be  justifiable  on  the  ground  of 
public  nuisance  and  danger. 

Carrying  Weapons. — State  law  forbidding  it,  and  au- 
thorizing arrest  without  warrant  for  its  violation,  seems 
not  to  deny  the  privileges  and  immunities  of  the  citizens 
of  the  United  States  contrary  to  the  Fourteenth  Amend- 
ment.105 

Railroad  in  Street,  liability  of  City  to  Lot-Owner. — The 
city  of  Richmond  gave  leave  to  a  railroad  company  to  oc- 
cupy a  street  with  its  road,  and  an  owner  of  a  lot  sued 
the  city  for  consequential  damages.  The  railroad  was  not 

99  110  U.  S.  516.     See  Brown  v.  N.  Jersey,  175  U.  S.  172. 
100176  U.  S.  83,  20  Sup.  Ct.  287;  Fitzpatrick  v.  U.  S.  178  U.  S. 
304. 

101  Bergeman  v.  Backer,   157  U.   S.  655;   Moore  v.  Missouri,   159 
U.  S.  673. 

102  25  S.  W.  779. 
1038  Utah,  245. 

io4Tiedman,  Police  Power,   Sec.    141a. 
105  Miller  v.  Texas,   153  U.  S.  535. 


TUB    FOURTEENTH     AMENDMENT.  291 

in  front  of  the  owner's  lot ;  but  it  was  claimed  that  its  con- 
struction in  the  street  near  to  the  lot  resulted  in  damage. 
It  was  claimed  that  property  was  taken  without  due  proc- 
ess, contrary  to  the  Fourteenth  Amendment.  The  Vir- 
ginia courts  having  held  that  where  there  is  no  actual 
taking  of  property,  but  merely  consequential  damage,  no 
action  lies,  the  plaintiff  was  held  not  entitled  to  recover, 
because  there  was  no  taking  such  as  would  give  damages, 
no  deprivation  of  property.106  It  seems  from  the  case 
that  the  city  would  not  be  liable  anyhow,  for  the  reason 
that  its  action  was  governmental  action. 

Judge  Must  Be  Authorized. — To  make  a  valid  judgment 
or  decree,  the  presiding  judge  must  be  a  judge  either  de 
jure  or  de  facto.  If  he  be  merely  de  facto  judge,  though 
not  de  jure,  his  judgment  is  due  process  and  valid ;  but  if 
he  is  judge  neither  de  facto  nor  de  jure  he  has  neither 
actual  authority,  nor  color  of  authority,  but  is  what  is 
called  a  mere  usurper,  however  pure  his  intentions  may  be. 
His  judgment  will  not  be  due  process,  but  what  is  termed 
a  judgment  coram  non  judice,  before  no  judge,  and  is 
void.107  The  opinion  by  Judge  Dent  in  State  v.  Cross, 
just  cited,  fully  discusses  the  validity  of  judicial  proceed- 
ings before  a  judge  de  facto. 

Unsigned  Recognizance. — ATI  act  dispensing  with  the 
signature  of  recognizances  in  open  court  held  not  to  vio- 
late the  Fourteenth  Amendment  in  its  provision  requir- 
ing due  process  of  law.108 

ice  Meyer   v.   Richmond,    172   U.    S.   82. 

107  Charles  v.  City,  98 'Fed.  166;  Griffin  v.  Cunningham,  20  Grat. 
31,  42;  Ex  parte  Ward,  173  U.  S.  452;  State  v.  Cross,  44  W.  Va.  315; 
Norton  v.  Shelby  County,  118  U.  S.  425,  6  Sup.  Ct.  1121. 

i"8McXamara  v.  People,  55  N.  E.  625. 


292  RIGHTS    AXD    PRIVILEGES    UNDER 

Sale  of  Fish  in  Section  of  City. — An  act  or  ordinance  pro- 
hibiting the  sale  of  fish,  buttter  or  other  provisions  in  a 
section  of  a  city  where  dry  goods,  clothing  or  drugs  are 
sold,  was  held  to  contravene  the  Fourteenth  Amend- 
ment.109 

Bribery  in  Election — An  act  prohibiting  bribery  in  elec- 
tions and  providing  for  the  ousting  from  office  of  a  suc- 
cessful candidate  guilty  of  a  violation  of  the  act  was  held 
not  to  violate  the  requirement  of  due  process  of  law.110 

Changes  in  Rules  of  Evidence. — It  is  clear  law  that  a 
state  may  uncontrollably  declare  what  shall  be  evidence 
in  its  courts,  and  may  change  the  law  and  rules  of  evi- 
dence, and  they  will  operate  011  existing  contracts,  if  its 
action  relate  only  to  evidence,  without  violating  the  con- 
tract clause  of  the  Constitution,  although  consequentially 
this  may  render  some  contracts  incapable  of  enforcement. 
Such  laws  savor  of  the  remedy  and  procedure,  and  are 
within  the  power  of  the  states,  as  a  general  rule.11  By 
a  parity  of  reasoning  the  same  principle  applies  under 
the  Fourteenth  Amendment.  It  was  not  designed  to  de- 
prive the  states  of  its  wonted  and  antecedent  powers  touch- 
ing the  law  and  rules  of  evidence  in  its  courts  deemed 
proper  by  it  in  the  administration  of  justice.  Such 
changes  in  the  law  of  evidence  do  not  destroy  vested  prop- 
erty without  due  process.  There  is  no  vested  right  in  ex- 
isting rules  of  evidence. 

Change  of  Remedy — A  state  may  mould  and  formulate 

its  legal  remedies  for  the  administration  of  justice  in  its 

• 

109  City  v.  Netcher  (111.),  55  N.  E.  707. 

no  State  v.  Town   (Mo.),  54  S.  W.  552. 

in  Thompson  v.  Missouri,  171  U.  S.  380;  Hopt  v.  Utah,  110  U.  S. 
574;  Mason  v.  Haile,  12  Wheat.  370. 


THE     FOURTEENTH     AMENDMENT.  293 

courts,  may  make  new  remedies,  or  change  and  modify 
existing  remedies  for  the  enforcement  of  existing  or  fu- 
ture contracts,  or  for  the  vindication  of  property  or  per- 
sonal rights,  without  violating  the  contract  clause  of  the 
Constitution  or  the  Fourteenth  Amendment.  A  party 
has  no  vested  right  in  existing  remedies.  So  he  has  a  fair 
and  efficient  remedy  at  the  hands  of  the  state  when  he  calls 
upon  it  for  relief  through  its  courts  he  has  no  right  to 
complain.  Xo  matter  as  to  its  form  or  name.  The  state 
has  a  right  to  say  by  what  process  or  procedure  its  courts 
shall  go,  and  by  what  means  or  vehicles  its  laws  shall  be 
administered  to  those  who  enter  its  forums.112  But  as 
it  is  settled  that  the  state  can  not,  by  repeal  or  destruction 
of  a  remedy,  take  away  all  remedy  existing  at  the  date  of  a 
contract  for  its  enforcement,  so  it  can  not,  without  vio- 
lating the  due  process  clause  of  the  Fourteenth  Amend- 
ment, take  away  all  remedy  to  vindicate  life,  liberty  and 
property,  by  repeal  of  existing  laws  of  remedy  or  other- 
wise, and  leave  no  remedy  to  the  suitor,  or  rather,  person. 
In  making  such  changes  of  remedy  the  state  must  not  take 
from  existing  contracts  or  property  rights  anything  an- 
nexed to  the  old  remedy  essential  to  the  full  and  com- 
plete enforcement  of  the  contract  or  property  right.  The 
authorities  upon  this  subject  are  many  and  nice  and  com- 
plicated. It  does  not  comport  with  the  purpose  of  this 
work  to  enter  into  their  various  minutiae,  details  and 
lines  of  distinction.  In  an  early  case113  Chief  Justice 

112  Railroad  v.  Hecht,  95  U.  S.  168 ;  Tennessee  v.  Sneed,  96  U.  S. 
69;  Brown  v.  New  Jersey,  175  N.  S.  172:  Leeper  v.  Texas,  139  U.  S. 
463:  Peninsular  Co.  v.  Union  Co.  100  Wis.  488. 
v.  Crownshields,  4  Wheat.  200. 


294  RIGHTS    AND    PRIVILEGES    UNDER 

Marshall  left  the  door  of  state  power,  in  this  matter,  as  to 
contracts,  too  wide  open  by  the  language,  "The  distinction 
between  the  obligation  of  a  contract  and  the  remedy  given 
by  the  legislature  to  enforce  that  obligation  has  been  taken 
at  the  bar,  and  exists  in  the  nature  of  things.  Without  im- 
pairing the  obligation  of  the  contract,  the  remedy  may 
certainly  be  modified,  as  the  wisdom  of  the  nation  shall 
direct.  Confinement  of  the  debtor  may  be  a  punishment 
for  not  performing  his  contract,  or  may  be  allowed  as  a 
means  of  inducing  him  to  perform  it.  But  the  state  may 
refuse  to  inflict  this  punishment,  or  may  withhold  this 
means,  and  leave  the  contract  in  full  force.  Imprison- 
ment is  no  part  of  the  contract,  and  simply  to  release  the 
prisoner  does  not  impair  its  obligation."  Later  cases  qual- 
ify and  limit  this  obiter.114 

Additional  Remedy  may  be  Given  as  to  Existing  Contracts 
or  other  rights  of  action,  increasing  the  efficiency  of  legal 
redress,  without  just  ground  of  complaint  by  the  person 
affected.115 

Forms  of  Procedure —  The  due  process  clause  of  the 
Fourteenth  Amendment  does  not  affect  or  control  what  are 
the  mere  forms  of  procedure  in  state  courts  or  in  their 
practice,  and  its  requirement  of  due  process  is  fully  met 
and  satisfied,  provided  that  in  the  proceeding,  no  matter 
about  its  form,  by  rule  or  otherwise,  the  person  condemned 
has  had  sufficient  notice  and  adequate  opportunity  to  de- 

114  Mason  v.  Haile,  12  Wheat.  379;  Bronson  v.  Kinsie,  1  How.  315; 
McCracken  v.  Hayward,  2  How.  608;  Barings  v.  Dabney,  19  Wall.  1 ; 
Edwards  v.  Kearzy,  96  U.  S.  595;  Walker  v.  Whitehead,  16  Wall. 
314;  Backus  v.  Fort  Street  Co.,  169  U.  S.  557. 

us  Danville  v.  Pace,  25  Grat.  1 ;  Hope  v.  Johnson,  2  Yerg.  (Tenn.), 
123. 


THE     FOURTEENTH     AMENDMENT.  295 

fend.116   Forms  of  proceeding  in  state  courts  are  not  con- 
trolled by  the  Fourteenth  Amendment.    This  applies  to 
civil  and  criminal  cases.117     Hence,  the  taking  of  a  case 
from  a  jury  and  its  decision  by  a  court  pursuant  to  a  stat- 
ute has  been  held  not  to  be  a  violation  of  the  Fourteenth 
Amendment.118     This  would  surely  be  good  by  way  of 
demurrer  to  evidence,  as  that  was  a  settled  practice  before 
the  amendment;   so  perhaps  the  direction  of  a  verdict 
would  be  lawful  as  tantamount  to  a  demurrer  to  evidence. 
Future  Contract  and  Property  Rights. — However  far  as  to 
efficacy  and  efficiency  for  the  enforcement  of  contract  or 
property  rights  a  new  law  may  detract  from  or  lessen  the 
old,  future  contracts,  and  future-acquired  property  rights 
must  submit  to  the  new  law,  and  the  law  existing  at  their 
birth  constitutes  a  part  of  them  as  if  incorporated  there- 
in.119 

Legislation  Judicial  in  Nature. — The  legislature  only  can 
make  laws;  the  courts  construe  the  laws;  the  executive 
enforces  the  laws.  This  is  the  general  statement,  because 
the  Constitution  divides  the  American  government  into 
three  great  departments,  Legislative,  Executive,  and  Ju- 
dicial, in  order  to  lodge  great  powers  —dangerous  powers, 
if  improperly  used — in  different  hands,  and  thereby  les- 
sen  the  danger  of  their  misuse,  and  to  preserve  liberty. 

"8  Louisville  &  N.  R.  R.  v.  Schmidt,  177  U.  S.  230;  20  Sup.  Ct. 
620. 

117  Brown  v.  New  Jersey,  175  U.  S.  172;  Murphy  v.  Massachusetts, 
177  U.  S.  p.  163;  Bolln  v.  Nebraska,  176  U.  S.  83*. 

"8  Apex  Trans.  Co.  v.  Garbade,  32  Ore.  582,  citing  Chicago  R.  Co. 
v.  City,  166  U.  S.  224,  and  Lent  v.  Tillson,  140  U.  S.  316. 

n»Sedgwick,  Con.  &  Stat.  L.  629;  Bronson  v.  Kinsie,  1  How.  311; 
Roberts  v.  Cocky,  28  Grat.  207;  Walker  v.  Whitehead.  16  Wall- 
314. 


296  RIGHTS    AND    PRIVILEGES    UNDER 

This  is  one  of  the  basic  principles  of  American  republi- 
can government  found  in  all  our  constitutions.  The  line 
of  demarkation  between  the  respective  functions  of  these 
several  departments  is  in  theory,  if  not  in  practice,  very 
marked.  The  fathers  of  the  republic  looked  to  this  as  the 
polar  star  and  sure  guaranty  of  governmental  freedom. 
Therefore,  if  an  act  of  a  state  legislature  is  not  in  its  na- 
ture purely  legislative,  but  is  in  its  nature  judicial,  the 
legislature  has  usurped  judicial  power,  and  under  state 
constitutions  that  act  would  be  void,  and  if  it  affect  liber- 
ty or  property,  it  affects  them  without  due  process,  in  vio- 
lation of  state  constitutions  and  the  Fourteenth  Amend- 
ment. "The  difference  between  the  departments  undoubt- 
edly is  that  the  legislature  makes,  the  executive  executes, 
and  the  judiciary  construes  the  laws,"  said  Chief-Justice 
Marshall  in  Wayman  v.  Southard,120  and  likewise  Chief- 
Justice  Gibson.121  In  the  Virginia  Supreme  Court  is  a 
very  luminous  discussion  in  able  opinions  by  Judges 
Christian,  Anderson,  Staples,  Moncure  and  Joynes  upon 
the  distinction  between  the  different  departments  and  their 
functions.122  Judge  Christian  said :  "No  particular  defini- 
tion of  judicial  power  is  given  in  the  constitution;  and, 
considering  the  general  nature  of  the  instrument,  none  was 
to  be  expected.  But  the  terms  used  are  still  sufficient  to 
designate,  with  clearness,  that  department  which  should 
interpret  and  administer  laws  from  that  department  which 
should  make  laws.  The  former  decides  upon  the  legality 
of  claims  and  conduct ;  the  latter  makes  rules  upon  which 

120  10  Wheat.  46. 

121  Greenough  v.  Greenough,  11  Pa.  St.  494. 

122  Griffin  v.  Cunningham,  20  Grat.   31. 


THE    FOURTEENTH     AMENDMENT.  297 

those  decisions  should  be  founded.  The  law  is  applied 
1-y  the  one,  and  is  made  by  the  other.  Cooley's  Const. 
Limitations,  92,  'To  declare  what  the  law  is,  or  has  been, 
is  judicial  power;  to  declare  what  the  law  shall  be,  is  leg- 
islative.' "123 

Under  these  principles,  if  a  legislature  undertakes  to 
nullify  a  judgment,  reopen  a  case  by  granting  a  new  trial, 
or  directing  or  authorizing  a  court  to  do  so,  or  grants  an 
appeal,  or  continuance,  or  declares  a  past  contract  or  con- 
veyance invalid,  or  pass  any  act  operative  upon  liberty, 
life  or  property,  which  is  judicial  in  its  essence,  it  is  con- 
trary to  the  due  process  demand  of  the  Constitution, 
and  void.124  The  act  simply  usurps  judicial  authority. 

123  See  Cooley,  Con.  Lim.  87,  95,  174;  Sedgw.  Stat.  &  Const.  L. 
138:    146. 

124  Griffin  v.  Cunningham,  20  Grat.  31,  51 ;  Wheeling  Bridge  Case, 
18  How.  421:  Linkons  v.  Shafer.  28  Grat.  775;  Ratcliffe  v.  Ander- 
son. 31  Grat.  105:  McCullough  v.  Virginia,  172  U.  S.  102;  Kilburn 
v.  Thompson,  103  U.  IS.  168. 


298  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  J4 


BUSINESS   LICENSES. 

The  power  of  the  states  under  the  head  of  taxation  and, 
in  some  instances,  also  under  the  head  of  police,  to  im- 
pose the  obligation  on  certain  persons  carrying  on  cer- 
tain trades  or  callings  or  business,  to  obtain  a  license  to 
do  so,  and,  where  the  state  chooses,  to  impose  taxation  on 
the  same,  is  beyond  question.  The  doctrine  laid  down  in 
the  Georgia  Case  of  Singer  Company  v.  Wright,1  that 
a  license  tax  on  some  occupations  and  not  on  others  is  no 
violation  of  the  Fourteenth  Amendment,  and  does  not 
deny  the  equal  protection  of  the  law  called  for  by  it,  and 
is  not  unwarranted  class  legislation  by  the  state,  is  sound. 
The  state  may,  and  does,  by  direct  act  for  state  purposes 
impose  license  taxes  on  specific  occupations;  and  it  may 
lawfully  delegate  to  counties  and  municipal  corporations 
the  power,  for  their  local  purposes,  to  grant  such  licenses 
and  impose  taxes  thereon.  To  enforce  legislation  or  or- 
dinance so  providing,  the  state  or  the  municipal  corpora- 
tion may  prescribe  a  penalty.  This  might  seem  to  violate 
that  provision  of  the  amendment  relative  to  the  equal 
protection  of  the  laws.  Anyone,  as  a  general  rule,  may 

i  25  S.  E.  R.  249. 


TED    FOURTEENTH     AMENDMENT.  299 

exert  his  capacity  and  talents,  and  use  his  property, 
to  make  a  living  in  any  lawful  business.  This  is  liberty, 
and  to  grant  a  license  to  one,  and  not  to  another,  to  carry 
on  such  business  might  seem  to  be  an  unlawful  restric- 
tion of  this  liberty;  but  this  right  of  liberty,  great  as  it 
is,  sacred  as  it  is,  like  the  right  of  even  life  and  property, 
must  be  held  subject  to  the  legitimate  constitutional  ex- 
ercise of  the  police  and  taxing  power  of  the  state.  Li- 
censes, and  taxation  thereon,  have  been  everywhere  im- 
memorially  used,  and  as  the  Fourteenth  Amendment  does 
not  invade  the  taxing  and  police  power  of  the  states,  this 
license  system  is  not  repugnant  to  the  amendment.2 

Under  this  principle  an  ordinance  of  Chicago  author- 
izing the  issue  of  license  to  sell  cigarettes  on  payment 
of  a  tax,  and  utterly  forbidding  the  sale  without  a  license, 
was  held  to  be  no  violation  of  the  Fourteenth  Amendment 
in  the  case  of  Gundliiig  v.  Chicago.3  That  case  holds 
that  the  delegation  of  power  to  the  mayor  of  a  city  to  grant 
or  refuse  such  license  is  no  violation  of  the  Fourteenth 
Amendment  on  the  score  of  its  being  arbitrary  legis- 
lation or  authority;  nor  is  the  requirement  of  a  tax  of 
$100,  because  "greater  than  expense  of  issuing  license 
and  providing  regulation."  The  court  said  that  it  was  not 
like  the  case  of  Yick  Wo  v.  Hopkins,  where  the  ordinance 
granted  arbitrary  power,  without  reference  to  discretion, 
in  a  legal  sense,  to  grant  or  refuse,  and  to  refuse  because 
of  rates;  but  that  in  the  Chicago  case  the  delegation 

2Crowley  v.  Christensen,  137  U.  S.  86;  License  Tax  Cases,  5  Wall. 
462;  Black  Intox.  Liq.  Sec.  46;  Burroughs,  Taxation,  146;  Cooley. 
Taxation,  472,  592;  Phenix  Co.  v.  State,  118  Ala.  143,  72  Am.  St.  R. 
143. 

s  177  U.  S.  183,  20  Sup.  Ct.  633. 


300  RIGHTS    AND    PRIVILEGES    UNDER 

of  authority  to  the  mayor  to  grant  or  refuse  the  cigarette 
license  was  a  legal  delegation  of  discretion  and  authority 
to  judge  of  the  personal  fitness  of  the  person  asking  the 
license,  and  to  judge  of  the  sufficiency  of  the  bond — a 
legal  discretion  to  say  whether  the  conditions  prescribed 
by  law  had  been  complied  with,  not  an  arbitrary  discre- 
tion, as  the  mayor  was  bound  to  grant  the  license  if 
such  condition  were  complied  with.  The  court  said  that 
this  was  no  denial  of  the  equal  protection  of  the  law. 
Such  provisions  are  very  common,  usual  and  necessary 
in  cities  and  towns.  The  court  said  it  was  within  the  prop- 
er exercise  of  the  police  power.  As  said  in  Crowley  v. 
Christensen,4  the  possession  and  enjoyment  of  all  rights 
are  subject  to  such  reasonable  conditions  as  may  be  deemed 
by  the  governing  authority  of  the  country  essential  to 
the  safety,  health,  peace,  good  order  and  morals  of  the 
community.  As  to  the  amount  of  the  tax.  As  held  in 
Royall  v.  Virginia,5  the  payment  required  is  a  tax  on  busi- 
ness, which  the  government  may  demand  as  a  precedent 
to  the  privilege  of  its  transaction,  and  that  government 
may  fix  the  price  of  the  privilege. 

Federal  Licenses  are  mere  taxes,  not  properly  licenses, 
as  they  do  not  grant  the  privilege  of  the  business  where 
that  business  is  prohibited  or  under  restrictions  by  state 
taxation  or  license  laws,  and  notwithstanding  such  federal 
taxation,  the  state  law  must  be  complied  with,  otherwise 
the  necessary  functions  of  the  state  for  existence  would 
be  sapped  or  crippled  materially.  Both  governments  must 
possess  this  power  of  taxation,  and  the  exercise  of  it 

*  137  U.  S.  86. 
5116  U.  S.  579. 


THB     FOURTEENTH     AMENDMENT.  3()1 

by  one  must  not  hinder  tlie  exercise  of  it  by  tbe  other. 
The  Act  of  Congress6  provides  that  payment  of  taxes  im- 
posed by  the  internal  revenue  laws  for  carrying  on  any 
trade  or  business  shall  not  be  held  to  exempt  any  person 
from  penalty  or  punishment  provided  by  state  law  for 
carrying  on  the  same,  or  authorize  the  commencement  or 
continuance  of  such  trade  or  business  contrary  to  the  laws 
of  a  state,  nor  to  prohibit  a  state  from  placing  a  tax  on 
such  trade  or  business.7  The  cases  show  that  the  nation 
can  not  grant  but  only  tax  licenses. 

«Rev.  Stat.  Sec.  3243. 

T  License  Tax  Cases,  5  Wall.  462;  Peryear  v.  Commonwealth,  5 
Wall.  475 ;  U.  S.  v.  Dewitt,  9  Wall.  41 ;  Weber  v.  Va.  103  U.  S.  346 ; 
Commonwealth  v.  Sheckles,  78  Va.  36;  Plumley  v.  Mass.  155  U.  S. 
461. 


302  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  15. 


TAXATION. 

What  property  can  a  state  tax  consistently  with  due 
process  of  law,  consistently  with  equality  before  the  law, 
or  rather,  consistently  with  legitimate  state  authority, 
so  that  we  may  say  the  party  is  not  deprived  of  property 
without  due  process  of  law,  and  is  not  denied  the  equal 
protection  of  the  law,  and  is  not,  as  a  non-resident,  brought 
under  state  authority  unlawfully  ?  In  Bristol  v.  Washing- 
ton Co.1  it  is  held  that  personal  property  of  a  citizen  and 
resident  of  one  state  invested  in  bonds  and  mortgages  in 
another  state  is  subject  to  taxation  in  the  latter  state. 
Jurisdiction  in  the  federal  court  in  the  case  was  on  the 
claim  that  the  allowance  by  the  U.  S.  Circuit  Court  of 
a  claim  for  taxes  against  a  dead  person's  estate  was  a 
deprivation  of  property  without  due  process  of  law,  an 
abridgment  of  the  privileges  and  immunities  of  a  citizen 
of  the  United  States,  and  a  denial  of  the  equal  protection 
of  the  law,  contrary  to  the  provisions  of  the  Fourteenth 
Amendment;  but  all  these  theories  were  overruled  by  the 
Supreme  Court.  The  court  held  that  though'  generally 
the  domicile  of  the  owner  of  personal  property  is  its  situs, 

1 177  U.  S.  133,  20  Sup.  Ct.  585.  See  Pullman  Co.  v.  Pa.,  141  U.  S. 
18.  Insurance  Company  may  be  taxed  for  shares  of  non-residents. 
State  v.  Travelers'  Jns  Co.,  47  Atl.  299. 


THti    FOURTEENTH     AMENDMENT. 

yet  iiot  invariably  so,  as  for  purposes  of  taxation  domi- 
cile may  be  one  place,  actual  situs  of  property  another. 
The  court  said  that  corporeal  property  is  everywhere 
conceded  to  be  taxable  where  it  is  actually  situated.  A 
credit  which  can  not  be  regarded  as  situated  in  a  place 
merely  because  the  debtor  resides  there  must  usually  be 
considered  as  having  situs  where  it  is  owned,  at  the  domi- 
cile of  the  creditor.  The  creditor  may,  however,  give  it 
a  business  situs  elsewhere,  as  where  he  places  it  in  the 
hands  of  an  agent  for  collection  or  renewal  with  a  view 
to  re-loaning  it.  The  court  cited  Xew  Orleans  v.  Semple,2 
where  taxes  were  levied  on  money  deposited  and  on  loans, 
and  it  was  held  that  the  statute  of  Louisiana  taxing  them 
was  not  against  the  Fourteenth  Amendment.  Tappan 
v.  Merchant's  Bank3  was  cited  as  separating  national 
bank  shares  from  their  owner  and  giving  them  a  situs 
of  their  own  for  taxation  where  they  actually  are.  The 
same  doctrine  in  Pullman  Car  Company  v.  Pennsylvania.4 
The  court  cited  Savings  Society  v.  Multnomah,5  where  a 
statute  of  Oregon  taxed  the  mortgages  of  a  non-resident 
mortgagee  on  real  estate  situated  in  Oregon,  and  it  was 
held  to  be  warranted  by  the  Fourteenth  Amendment. 
These  late  cases  assert  "The  right  of  every  state  to  tax 
all  property,  real  and  personal,  within  its  jurisdiction" 
as  unquestionable,  as  held  in  McCullough  v.  Maryland.6 
This  power  of  a  state  is  carried  so  far  in  Coe  v.  Errol7 

.     2  175  u.  S.  309. 
3  19   Wall.   490. 
*  141  U.  S.  22. 
s  169  U.   S.  427. 
«4  Wheat.   316,  429. 
7  116  U.  S.  517. 


304  RIGHTS    AND    PRIVILEGES    UNDER 

that  it  was  decided  that  "goods  and  chattels  within  a  state 
are  equally  taxable  whether  owned  by  a  citizen  of  the  state 
or  a  citizen  of  another  state,  even  though  the  latter  be 
taxed  in  his  own  state  for  the  value  of  the  same  goods  as 
part  of  his  general  estate."  See  also  State  Railroad 
Tax  Cases.8  Bristol  v.  Washington9  gives  full  insight 
into  the  right  of  a  state  to  tax  property  actually  within  it. 
It  settles  that  goods  and  chattels,  and  stocks  and  debts 
or  credits,  if  actually  within  a  state,  though  belonging  to 
a  non-resident,  may  be  taxed  by  it.  Stock  in  banks  may  be 
taxed  where  the  bank  is.  The  national  banking  act  does 
this  as  to  stock  in  them. 

In  Union  Refrigerator  Company  v.  Lynch,10  a  Ken- 
tucky corporation,  which  engaged  in  furnishing  refriger- 
ator cars  for  transportation  of  freight  and  had  some  cars 
in  use  in  Utah,  was  held  taxable  on  those  cars  in  Utah. 
The  court  said  that  taxation  of  the  ten  cars  was  not  uncon- 
stitutional on  the  theory  either  that  they  had  no  situs 
in  Utah  or  that  such  taxation  was  an  interference  with 
interstate  commerce.  The  case  mentioned  cited  and  fol- 
lowed the  case  of  Refrigerator  Company  v.  Hall.11  The 
case  holds  that  where  a  corporation  of  one  state  brings 
into  another  state  to  there  use  and  employ  a  portion  of 
its  movable  personal  property,  the  latter  state  may  tax 
it  like  property  of  its  own  citizens,  though  the  items  of 
such  property  are  not  continuously  the  same,  but  con- 
stantly changing  according  to  exigencies  of  business,  and 

8  92  U.  S.  575. 

»  177  U  S.  133,  20  Sup.  Ct.  585. 

10  177  U.  S.  149;  20  Sup.  Ct.  631. 

11  174  U.  S.  70. 


THE    FOURTEENTH     AMENDMENT.  305 

that  the  tax  may  be  fixed  by  an  appraisement  and  valua- 
tion of  the  average  amount  of  property  habitually  used 
in  the  state.  The  interstate  commerce  clause  of  the  Con- 
stitution would  not  forbid  this  taxation,  as  the  court 
held.  This  is  also  shown  by  Adams  Express  Company 
v.  Ohio.12 

Foreign  Corporations  must  dwell  in  the  place  of  their 
creation  and  can  not  migrate  to  another  sovereignty, 
their  habitat  being  in  the  state  of  their  creation,  though 
a  foreign  corporation  may  do  business  in  all  states  where 
its  charter  allows  and  the  local  laws  do  not  forbid.13  But 
it  is  to  be  understood  that  a  state  may  grant  or  refuse 
the  privilege  to  a  foreign  corporation  to  do  business 
in  it.  or  may  place  it  under  regulations  limiting  the  right 
without  taking  away  liberty  or  property  contrary  to  the 
Fourteenth  Amendment,  and  without  denying  its  equal 
protection.  A  state  has  the  right  to  impose  terms  upon 
a  foreign  corporation  doing  business  within  it,  except 
federal  business.  This  is  clearly  shown  by  the  full  dis- 
cussion of  the  subject  found  in  two  cases  recently  de- 
cided in  the  Supreme  Court,  holding  that  an  act  of  Texar 
forbidding  a  foreign  corporation  from  doing  business 
violating  state  law  does  not  violate  the  amendment.14 

Taxation  of  Express  Companies. — A  tax  on  the  property 
of  express  companies  within  a  state,  the  taxable  value  of 
which  is  determined  with  reference  to  the  whole  capital, 
has  been  held  valid,  as  no  interference  with  interstate 

12  165  U.  S.  194.     Pullman  Co.  v.  Pa.  141  U.  S.  18. 

is  Railroad  v.  Koontz,  104  U.  S.  12 ;  Humphreys  v.  Newport  News 
Co.  33  W.  Va.  137. 

i  *  Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28;  N.  Y.  Life  C» 
v.  Craven,  178  U.  S.  389 ;  20  Sup.  Ct.  p.  965. 


306  RIGHTS    AND    PRIVILEGES    UNDER 

commerce.15  The  case  follows  those  holding  that  prop- 
erty of  a  corporation  in  several  states  might  be  valued  as 
a  unit  for  purposes  of  taxation,  taking  into  consideration 
its  uses  and  all  elements  of  value,  and  a  proper  propor- 
tion of  the  whole,  fairly  ascertained,  might  be  taxed  by 
the  state,  citing  numerous  cases. 

Condemnation  of  Property. — I  have  already  adverted  to 
the  common  doctrine  that  private  property  may  be  taken 
for  public  use  upon  compensation  being  paid  or  secured 
to  be  paid,  but  that  it  can  not  be  taken  for  private  use  at 
all.  I  have  since  met  with  the  case  of  in  re  Tuthil,1 6  decid- 
ed by  the  Court  of  Appeals  of  New  York,  holding  that  an 
amendment  to  the  state  constitution  authorizing  the  pas- 
sage of  general  laws  permitting  owners  or  occupants  of 
agricultural  lands  to  construct  ditches  on  the  lands  of 
others  under  proper  restrictions,  on  payment  of  compen- 
sation, violates  the  Fourteenth  Amendment,  as  depriving 
a  person  of  property  without  due  process  of  law,  in  that 
it  authorizes  a  citizen  to  take  property  by  the  exercise  of 
the  right  of  eminent  domain  primarily  for  his  own  benefit, 
not  sanctioned  as  a  public  use,  either  by  long  acquiescence 
or  by  judicial  or  legislative  precedents.  The  case  is  in 
this  respect  notable  in  that  its  theory  is  that  as  it  had  been 
the  law,  before  the  amendment  of  the  state  constitution, 
that  private  property  could  not  be  taken  for  private  use, 
the  state  could  not  amend  its  constitution  so  as  to  do  so 
because  of  the  Fourteenth  Amendment.  If  such  is  the 
true  interpretation  of  that  case,  the  question  occurs  to  me, 
Is  this  case  clearly  sound  law?  Does  the  mere  fact  that 

isSanford  v.  Poe,  37  U.  S.  App.  378. 
i«57  N.   E.    303. 


THE    FOURTEENTH     AMENDMENT.  307 

before  the  Fourteenth  Amendment  the  state  constitution 
restrained  the  taking  of  private  property  for  private  use 
make  the  amendment  disable  the  state  from  a  change 
of  its  constitution  in  this  respect?  Does  that  amend- 
ment disable  a  state  from  changing  its  laws  ?  Some  state 
constitutions  once  required  indictment  by  a  grand  jury  or 
trial  by  twelve  jurors;  yet  state  constitutional  amend- 
ments substituting  an  information  in  place  of  an  indict- 
ment, or  allowing  trial  by  less  that  twelve  jurors,  have 
been  held  within  the  competency  of  the  state,  and  not  in- 
consistent with  the  Fourteenth  Amendment.17  I  do  not 
clearly  see  that  a  state  can  not,  by  its  constitution,  take 
private  property  for  private  use,  with  compensation,  un- 
less we  are  able  to  assert  that  general  doctrine,  which  is  as- 
serted by  some,  that  there  be  some  acts,  such  as  taking  one 
man's  property  for  another's  use,  that  a  state  can  not  au- 
thorize even  though  unrestrained  by  constitutional  pro- 
hibition. Judge  Story  so  asserted.18  Others  have  made 
this  broad  declaration ;  but  where  the  constitution  does  not 
say  nay,  the  courts  can  not  say  nay,  the  state  is  omnipo- 
tent.19 Where  will  you  find  its  limit  of  lawful  rein? 
Only  in  some  vague  doctrine  that  it  is  violative  of  the  ab- 
stract, fundamental  principle  of  republican  govern- 
ment.20 

Lunacy  Inquisition. — Does  this  proceeding,  whatever 
its  form,  having  for  its  direct  purpose  the  establishment 

"Hurtado  v.  California,  110  U.  S.  537;  Maxwell  v.  Dow,  176 
U.  S.  581. 

is  Wilkinson  v.  Leland,  2  Pet.  657. 

i»  Holyoke  v.  Lyman,  15  Wall.  500. 

20  State  v.  Wheeler,  25  Conn.  290;  Town  v.  Pace,  25  Grat  15; 
Sedgwick,  Stat.  &  Cons.  Law,  173. 


308  RIGHTS    AND    PRIVILEGES    UNDER 

of  a  person's  lunacy,  demand  a  jury  in  order  to  be  due 
process  ?  If  found  to  be  a  lunatic,  the  person  is  actually 
dep lived  of  liberty,  he  is  bodily  imprisoned,  his  property 
is  taken  from  his  control  and  custody,  and  thus  the  result 
is  as  grave  to  him  as  a  conviction  of  crime.  The  hasty 
answer  to  this  question,  seeing  the  seriousness  of  such  a 
finding,  would  be  naturally  that  a  jury  would  be  indis- 
pensable; yet  it  is  not  so,  unless,  as  in  Missouri,  statute 
law  requires  it.  Why?  Because,  as  held  in  Black 
Hawk  v.  Springer,21  the  provision  in  the  constitution  for 
jury  trials  for  the  safety  of  liberty  is  meant  only  for  pro- 
ceedings for  crime.  This  gives  a  reasonable  solution  as  to 
liberty  and  deprivation  of  property.  The  clause  giving 
a  jury  in  cases  where  the  amount  or  value  in  controversy 
is  over  a  certain  sum  plainly  does  not  apply  to  the  case. 
The  reason  why  the  Fourteenth  Amendment  does  not 
require  a  jury  is  that  often  mentioned  in  this  work, 
namely,  that  wherever  before  the  amendment  a  certain 
procedure  was  the  due  and  ordinary  procedure  in  the 
particular  case,  it  so  continues  under  the  Fourteenth 
Amendment.  A  common  law  inquisition  of  lunacy,  which 
was  due  process  long  anterior  to  this  amendment,  did  not 
require  a  jury  trial  as  to  the  lunacy.22  A  jury  in  a 
state  court  is  not  demanded  by  the  IT.  S.  Constitution.23 
But  the  authorities  conflict  on  this  question.  Some  hold 
the  jury  essential  in  lunacy  cases.24 

21  58  Iowa,  417. 

22  Nobles  v.  Georgia,  168  U.  S.  398 ;  Dowdell  Case,  61  Am.  St.  R. 
290. 

23  Walker  v.  Sauvinet,  92  U.  S.  90. 

24  Matter  of  Dey,  9  N.  J.  Ch.  181 ;  Smith  v.  People,  65  111.  375. 


THE     FOURTEENTH     AMENDMENT.  3Q9 

Anyone  may  detain  temporarily  a  person  actually  in- 
sane who  is  dangerous,  as  a  matter  of  necessity,  or  of 
manifest  prudence;  but  for  permanent  confinement  an 
inquisition  pursuant  to  law  is  necessary,  as  otherwise  it 
would  be  a  deprivation  of  liberty  without  due  process.25 

Vagrants,  Drunkards, — Great  police  powers  are  exerted 
against  these.  They  may  be  lawfully  detained  and  de- 
prived of  liberty  without  jury.  Such  has  been  a  lawful 
procedure  in  such  cases  time  out  of  mind  under  the 
common  law.  Statutes  generally  authorize  it,  but  they 
are  simply  declarative  of  common  law  police  power.26 
The  fact  that  such  procedure  antedated  constitutional 
provision  guaranteeing  the  jury  right  is  the  only  ade- 
q  11  ate  explanation  of  this  great  power. 

Jury  to  Fix  Punishment. — This  is  not  a  part  of  the  real 
trial  over  the  criminal  fact.  After  the  criminal  fact  has 
been  duly  found  by  a  jury,  the  constitutional  demand  of 
a  jury  trial  has  been  satisfied,  and  it  does  not  extend 
to  the  fixing  of  punishment.27  Nor  is  a  jury  necessary 
to  determine  the  degree  of  murder  after  confession  of 
the  fact.  The  confession  dispenses  with  the  necessity  of 
a  jury  trial  to  ascertain  the  criminal  fact,  the  corpus  de- 
licti.28 

Trading  Stamps. — An  act  prohibiting  the  giving  of 
trading  stamps  authorizing  a  person  to  receive  from  an- 
other person  than  the  seller  some  other  article  than 

25  Van  Duzen  v.  Newcomer,  40  Mich.  90. 

26  Tiedman,  Police  Power,  Sees.  46,  47. 

27  Skelton  v.  State,  149  Ind.  641. 

28  State  v.  Alray,  67  N.  H.  274. 


310  RIGHTS    AND    PRIVILEGES    UNDER 

that  sold  violates  the  liberty  clause  of  the  Fourteenth 
Amendment.29 

Heating  Cars  by  Stoves. — A  statute  prohibiting  it  on 
railroads  over  fifty  miles  long,  held  not  to  take  property 
\vithout  due  process  of  law  or  deny  the  equal  protection 
of  the  law.30 

Taking  Railroad  Property  for  Private  Use. — An  order  of 
a  state  court  requiring  a  railroad  company  to  surrender 
its  property  as  a  site  for  a  private  elevator,  takes  that  prop- 
erty without  due  process.31 

Petroleum  Illumination — An  act  prohibited  the  use  of 
pretroleum  products  for  lights  emitting  a  combustible 
vapor  at  lower  temperature  than  105  degrees  except  in 
certain  kind  of  lamps.  It  was  held  that  as  there  were 
other  lamps  as  safe,  the  act  was  contrary  to  the  Fourteenth 
Amendment  in  abridging  the  privileges  and  immuni- 
ties of  citizens  of  the  United  States,  and  as  denying  the 
equal  protection  of  the  laws.32 

Selling  Meats  in  Certain  Places — An  ordinance  prohib- 
iting those  engaged  in  selling  dry  goods,  clothing,  jewelry 
and  drugs  from  selling  meats,  fish,  butter,  cheese,  lard, 
vegetable  or  other  provisions,  was  held  not  a  regulation 
of  trade  to  promote  health,  but  an  arbitrary  prohibition 
interfering  with  property  rights,  contrary  to  the  Four- 
teenth Amendment.33 

2»  State  v.  Dalton  (R.  I.)    (1900),  — . 

so  New  York,  etc.  Co.  v.  People,  165  U.  S.  628,  17  Sup.  Ct.  418. 

si  Missouri  Pac.  Co.  v.  Nebraska,  164  U.  S.  403,  17  Sup.  Ct.  130. 

32  State  v  Santee,  82  N.  E.  445. 

33  City  of  Chicago  v.  Netcher,  183  111.  104.     Hospital  may  be  pro- 
hibited in  built-up  section  of  city  consistently  with  the  Fourteenth 
Amendment,  Commonwealth  v.  Charity  Hospital,  47  Atl.  980   (Pa.). 


TUB    FOURTEENTH     AMENDMENT. 

Jury  Waiver  in  Misdemeanors,  Valid,34  even  in  mur- 
der case,35  if  statute  allow. 

Dogs. — Unlicensed  dogs,  though  they  are  property,  may 
be  killed  by  anyone.  A  person  may  kill  a  dog  attacking 
him  or  any  member  of  his  family,  or  anyone  in  his  com- 
pany, or  any  dog  which  kills  fowls  or  stock.  A  fine  dis- 
cussion of  this  subject  will  be  found  in  Harris  v.  Eaton.36 

Ordinance  Against  Moving  Building  on  or  Across  a  Street 
without  the  consent  of  the  mayor  does  not  deny  equal 
protection  of  the  law  or  due  process  of  law.37 

Accused  Becoming  Witness. — If  one  on  trial  for  crime 
waives  his  constitutional  privilege  of  silence  and  becomes 
a  witness,  and  testifies  to  an  alibi  or  other  fact,  he  may 
be  cross-examined  as  to  every  fact  having  any  bearing 
as  to  that  fact,  but  not  as  to  new  facts  about  which  he  did 
not  testify  in  his  examination-in-chief.38 

Rules  of  Evidence  and  Criminal  Procedure The  state 

may  change  these  consistently  with  the  amendment,  as 
elsewhere  stated  (p.  292).  A  strong  instance  of  this 
is  the  late  case  of  Thompson  v.  Missouri,39  where  an 
act  allowing  a  comparison  of  hand-writing  as  competent 
evidence,  which  evidence  was  not  competent  until  that  act, 
arid  not  competent  at  the  time  of  the  commission  of  the  of- 
fense, was  held  proper  evidence,  and  not  ex  post  facto, 
and  not  open  to  the  charge  that  it  was  contrary  to  due 

s*  Brewster  v.  People,  183  111.  143 ;  State  v.  Grigg,  34  W.  Va.  79. 

as  Hallinger  v.  Davis,  146  U.  S.  314. 

3620  R.  I.  81. 

37  Wilson  v.  Eureka,  173  U.  S.  32,  19  Sup.  Ct.  317. 

ss  Fitzpatrick  v.  U.  S.  178  U.  S.  304. 

"  171  U.  S.  380,  18  Sup.  Ct.  922. 


312  RIGHTS    AND    PRIVILEGES    UNDER 

process.  Likewise  the  case  of  Hopt  v.  Utah40  holding 
valid  an  act  making  a  convict  a  competent  witness,  though 
not  such  at  the  date  of  the  commission  of  an  offense. 

Eminent  Domain — Jury  not  Essential. — As  already 
stated  (p.  163),  a  jury  is  not  essential  in  this  proceeding 
to  constitute  due  process  unless  the  state  law  require  it. 
The  compensation  may  be  fixed  by  commissioners,  or  a 
board,  with  right  to  review  by  the  courts,  which  always 
exists.  It  is  no  denial  of  due  process  that  the  statute 
makes  the  finding  by  the  jury  or  commissioners  final, 
leaving  to  the  courts  only  the  question  whether  any  erron- 
eous basis  was  adopted  in  the  appraisal  or  error  in  the 
proceeding.41 

Driving  Cattle  over  Road  Bank. — An  act  making  any- 
one driving  cattle  over  a  highway  constructed  on  a  hill- 
side liable  to  damage  does  not  deprive  him  of  property 
without  due  proces  of  law,  or  deprive  him  of  the  equal  pro- 
tection of  the  laws.42 

Fishing — The  state  has  power  to  make  regulations 
to  preserve  fish  in  its  waters  from  destruction,  as  elsewhere 
shown  (p.  220).  It  may  even  regulate  it  on  one's  own 
land.43 

Fishing  Confined  to  State  Citizens An  act  of  Virginia 

limited  the  right  to  take  oysters  and  fish  from  its  waters 
to  its  own  people.  It  was  attacked  as  an  infraction  of  the 
Fourteenth  Amendment  as  denying  the  people  of  other 

40  110  U.  S.  574. 

41  Long  Island  Co.  v.  Brooklyn,  166  U.  S.  685,  17  Sup.  Ct.  718; 
Backus  v.  Fort  Street  Depot  Co.   169  U.  S.  557,  18  Sup.  Ct.  445; 
Gilmer  v.  Hunnicutt,   35   S.  E.   521. 

42  Jones  v.  Brim,  165  U.  S..  180,  17  Sup.  Ct.  282. 

43  State  v.  Thereault,  70  Vt.  617,  State  v.  Dow,  47  Atl.  734. 


THE     FOURTEENTH     AMENDMENT.  313 

states  the  privileges  of  citizens  of  the  United  States  and 
of  the  equal  protection  of  the  laws ;  but  the  Supreme  Court 
held  that  ths  act  did  not  infringe  the  Fourteenth  Amend- 
ment, that  it  was  not  a  privilege  of  a  citizen  of  the  United 
States  to  fish  in  the  waters  of  Virginia  flowing  from  his 
federal  citizenship,  and  that  the  state  had  the  right  to 
limit  the  use  of  its  public  property  to  its  own  people.44 

Usury. — Curative  Act — An  act  taking  away  the  defense 
of  usury  has  been  held  valid  on  the  theory  that  it  does  not 
change  the  agreement  or  contract,  but  only  removes  a 
bar  to  its  enforcement.  The  case  holds  the  building  as- 
sociation act  dispensing  with  the  plea  of  usury  valid.45 

Curative  Act. — An  act  legalizing  city  bonds  held  valid.46 

Tax  Deed,  Assault  on. — A  statute  limiting  the  time 
within  which  an  attack  might  be  made  upon  a  tax  deed 
held  to  be  a  statute  of  limitations  and  valid,  as  to  the 
Fourteenth  Amendment.47 

Foreign  Corporation,  Mortgage  by. — A  state  act  pro- 
hibited foreign  corporations  from  taking  mortgages  for 
loans,  and  a  later  act  made  them  valid,  and  it  was  held 
that  the  second  act  did  not  impair  the  obligation  of  the  con- 
tract of  a  mortgage  taken  between  the  time  of  the  two 
acts,  and  did  not  deprive  of  property  without  due  process 
of  law  contrary  to  the  Fourteenth  Amendment.48 

Roads,  Taking  Land  for. — An  act  directing  supervi- 
sors of  two  adjoining  towns  to  lay  out  a  new  road  or  alter 

"McCready  v.  Virginia,  94  U.   S.   391. 

«  Iowa  Savings,  etc.  v.  Heidt,  77  N.  W.  1050 ;  Danville  v.  Pace, 
25  Grat.  1. 

*«Schenck  v.  City,   152  Ind.  204. 

<T  Sarinac,  etc.  v.  Roberts,  177  U.  S.  318,  20  Sup.  Ct.  C42. 

*8  Gross  v.  U.  S.  Co.  108  U.  S.  477;  Evans-Snider-Buel  Co.  v. 
McFadden,  105  Fed.  293,  is  a  full  discussion,  holding  valid  retro- 
active act  affecting  attachment  before  judgment  on  it. 


314:  RIGHTS    AND    PRIVILEGES    UNDER 

an  old  one  was  attacked  as  contrary  to  the  Fourteenth 
Amendment,  the  point  being  that  it  made  no  provision 
for  notice  to  the  parties  interested,  and  did  not  provide 
compensation  for  the  land;  but  it  was  held  that  as  other 
road  acts  were  to  be  applied  in  carrying  out  the  act  in  ques- 
tion, and  these  acts  provided  for  the  ascertainment  of  com- 
pensation, the  act  in  question  did  not  take  property  without 
due  process,  or  deny  equal  protection  of  the  laws.49 

Additional  interest  on  affirmance  of  judgment  held  no 
denial  of  equal  protection.50 

«  Hurst  v.  Town,  82  N.  W.  1099. 

BO  Syndicate  Co.  v.  Bradley,  7  Wyo.  228. 


TUB    FOURTEENTH.     AMENDMENT.  315 


Chapter  16. 

EQUAL    PROTECTION    OF    THE  LAW. 

We  have  seen  how  far-reaching  are  the  clauses  of  section 
1  of  the  Fourteenth  Amendment  relative  to  the  rights, 
privileges  and  immunities  of  citizens  of  the  United  States 
and  the  prohibition  against  all  state  action  depriving  per- 
sons of  life,  liberty  or  property  without  due  process 
of  law;  but  far-reaching  and  wide  as  are  those  clauses, 
the  framers  of  the  amendment  were  not  content  with  them, 
but  added  another  clause  providing  that  no  state  shall 
"deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws."  The  authors  of  the  amendment  in- 
serted this  clause  as  a  safety  clause  in  order  to  guarantee 
rights  which  might  not  fall  under  the  protection  of  the 
antecedent  clauses,  and  under  them  secure  rights  given  by 
laws.  What  does  this  clause  mean  f{  It  is  difficult  to  say ; 
nor  is  it  safe  to  say.  As  the  Supreme  Court  has  said 
with  reference  to  other  clauses,  it  is  impracticable,  not 
desirable,  and  dangerous  to  attempt  in  advance  any  in- 
flexible, unchangeable,  cast-iron  rule  of  interpretation 
or  application.  Each  case  must  stand  on  its  own  features 
and  merits  as  it  arises  in  the  course  of  time  and  in 
changing  conditions  and  necessities.  We  can  only  look 


316  RIGHTS    AND    PRIVILEGES    UNDER 

at  the  general  spirit  and  purpose  of  this  clause.  We  may 
say  that  the  Fourteenth  Amendment  first  incorporated  it 
in  our  constitutional  law.  It  is  true  that  our  forefathers, 
in  the  immortal  Declaration  of  Independence,  declared 
in  1776:  "We  hold  these  truths  to  be  self-evident:  that 
all  men  are  created  equal ;  that  they  are  endowed  by  their 
Creator  with  certain  inalienable  rights ;  that  among  these, 
are  life,  liberty  and  the  pursuit  of  happiness;  that  to 
secure  these  rights,  governments  are  instituted  among 

*- 

men,  deriving  their  just  powers  from  the  consent  of  the 
governed."  Thus  these  founders  of  the  republic  declared 
as  axiomatic  principles  which  are  substantially  those 
enunciated  by  this  clause  of  the  Fourteenth  Amendment; 
but  whilst  the  principles  of  the  Declaration  of  Independ- 
ence are  the  normal  principles  of  the  government  of  this 
great  republic,  "inwoven  with  our  frame,"  silent  law, 
yet  it  is  only  silent,  not  express  constitutional  ordinance, 
and  hence,  it  may  be  supposed,  the  authors  of  the  Four- 
teenth Amendment  deemed  this  clause  of  equal  protection 
of  the  laws  prudent  and  essential  as  a  part  of  the  very- 
fabric  of  constitutional  law.  |Antecedent  to  the  Fourteenth 
Amendment  the  Supreme  Court  of  Tennessee  used  lan- 
guage seeming  to  be  prophetic  of  its  coming  and  vindica- 
tive of  its  policy  in  Wally's  Heirs  v.  Kennedy.1  "The 
rights  of  every  individual  must  stand  or  fall  by  the  same 
rule  or  law  that  governs  every  other  member  of  the  body 
politic  or  land  under  similar  circumstances;  and  every 
partial  or  private  law  which  directly  proposes  to  de- 
stroy or  affect  individual  rights,  or  does  the  same  thing 

12  Yerg.  (Tenn.),  554. 


THE     FOURTEENTH     AMENDMENT  317 

by  affording  remedies  leading  to  similar  circumstances, 
is  unconstitutional  and  void.  Were  it  otherwise,  odious 
individuals  and  corporations  would  be  governed  by  one 
law,  the  mass  of  the  community  and  those  who  made  the 
law  by  another ;  whereas,  the  like  general  law  affecting 
the  community  equally  could  not  have  been  passed."  That 
extract  is  a  fair  interpretation  of  the  equality  clause  of 
the  amendment.  Magna  Charta,  as  commonly  published, 
is  only  part  of  the  Act  of  June  15,  1215,  given  by  King 
John.  It  is  Chapter  39  of  that  act;  but  that  act  contains 
more.  It  contains  many  matters,  and  among  them  is  found 
Chapter  40,  which  we  may  say  is  the  prototype  of  this 
equality  clause,  in  the  language,  "Nulli  vendemus,  nulli 
negabimus,  aut  differemus,  rectum  aut  justitiam."  (To 
no  one  will  we  sell,  to  no  one  will  we  deny,  to  no  one  will 
we  delay,  right  or  justice.)  The  principle  of  this  clause 
of  the  amendment  is  high  constitutional  law,  without 
which  the  vitality  of  the  republic  would  be  largely  sap- 
ped, a  principle  that  must  exist  in  all  free  governments. 
It  is  basic  and  fundamental  therein.  It  protects  the 
plowman  following  his  plow;  it  protects  the  millionaire 
in  his  palace.  It  stretches  out  its  beneficent  hand  of 
equal  right  under  the  law  to  each  and  all  alike  within  the 
bounds  of  the  nation,  wherever  the  national  jurisdiction 
extends.  It  says,  "Equal  rights  to  all,  special  privileges 
to  none."  Cicero  said  in  his  work  De  Respublica  that 
equality  of  right  was  the  basis  of  the  commonwealth;  for 
as  property  could  not  be  equal,  and  talents  are  not  equal, 
rights  ought  to  be  held  equal  among  all  citizens  of  the 
state,  which  is  in  itself  nothing  but  a  community  of  right. 
This  great  doctrine  reigns  in  all  lands  where  liberty  exists, 


318  RIGHTS    AND    PRIVILEGES    UNDER 

and  especially  in  this  land  under  the  imperative  mandate 
of  the  Supreme  Constitution,  and  it  tells  the  governors 
that  they  must  make  and  execute  fair  and  impartial  laws 
for  the  millionaire  in  his  palace,  for  the  man  holding 
the  curule  dignity  of  lofty  public  station,  and  for  the 
laborer  with  the  pick  or  plow. 

^  It  will  be  seen  from  the  words  of  the  clause  in  question 
that  it  applies  to  all  persons  of  either  sex,  of  any  age, 
of  any  race,  native,  foreign  or  alien,  so  they  be  within 
the  jurisdiction  of  the  United  States.2  Senator  Sumner 
took  an  active  part  in  the  proposal  of  this  amendment. 
In  a  speech  upon  it  he  expressed  his  construction  of  it  as 
follows:  "These  are  no  vain  words.  Within  the  sphere 
of  their  influence  no  person  can  be  created,  no  person  can 
be  born,  with  civil  or  political  privileges  not  equally  en- 
joyed by  all  his  fellow  citizens ;  nor  can  any  institution 
be  established  recognizing  distinction  of  birth.  Here  is 
the  great  charter  of  every  human  being  drawing  vital 
breath  upon  this  soil,  whatever  may  be  his  condition  and 
whoever  may  be  his  parents.  He  may  be  poor,  weak, 
humble  or  black ;  he  may  be  of  Caucasian,  Jewish,  Indian 
or  Ethiopian  race ;  he  may  be  of  French,  German,  Eng- 
lish or  Irish  extraction;  but  before  the  Constitution  all 
these  distinctions  disappear.  He  is  not  poor,  weak,  humble 
or  black ;  nor  is  he  Caucasian,  Jew,  Indian  or  Ethiopian ; 
nor  is  he  French,  German,  English  or  Irish.  He  is  Man, 
the  equal  of  all  his  fellow  men.  He  is  one  of  the  children 
of  the  state,  which,  like  an  impartial  parent,  regards 
all  its  offsprings  with  an  equal  care.  To  some  it  may 

2  Slaughter-House  Cases,  16  Wall.  36. 


THE    FOURTEENTH     AMENDMENT.  319 

justly  allot  higher  duties  according  to  higher  capacities; 
but  it  welcomes  all  to  its  equal,  hospitable  board.  The 
state,  imitating  the  divine  justice,  is  no  respecter  of  per- 
sons."  Let  us  turn  to  judicial  exposition  of  this  amend- 
ment. "It  stands  in  the  Constitution  as  a  personal  shield 
against  all  unequal,  impartial  legislation  by  states,  and 
injustice  which  follows  from  it,  whether  directed  against 
the  most  humble  or  the  most  powerful;  against  the  de- 
spised laborer  from  China,  or  the  envied  master  of  mil- 
lions.'*) 

This  clause  operates  upon  all  agencies  by  which  state 
law  is  made  and  enforced,  all  departments  of  state  govern- 
ment, legislative,  executive,  judicial,  and  all  subordinate 
agencies.4  ] 

The  clause  of  equality  before  the  law  protects  not  only 
natural  persons,  but  also  those  artificial  persons  called  cor- 
porations, it  regarding  them  as  persons  under  it.5 

( What  is  the  practical  meaning  of  the  clause.?  Its  words, 
"equal  protection  of  the  laws,"  in  themselves  are  a  good 
general  definition,  especially  when  we  come  to  the  task 
of  applying  them  to  a  particular  case.  ISTorie  but  gen- 
eral definitions,  which  are  innumerable  in  varying  phrase, 
can  be  given.  We  can  only  apply  it  to  cases  as  they  come. 
What  is  now  equal  protection  would  not  have  been  so 
heretofore ;  what  is  now  such  may  not  be  such  in  future. 
Times,  society,  and  their  wants  change.  Take  the  police  ~J^f 
power  of  a  state.  What  would  infract  the  amendment  now, 
may  not  do  so  some  years  hence.  The  needs  of  government 

«Yick  Wo  v.  Hopkins,  118  U.  S.  356. 

*  Ex  parte  Virginia,  100  U.  S.  339;  C.  B.  &  Q.  Ry.  Co.  v.  Chicago, 
1U6  U.  S.  226. 

5  Smith  v.  Ames,  169  U.  S.  466. 


320  RIGHTS    AND    PRIVILEGES    UNDER 

change  with  changing  conditions.  Wonderful  is  the  great 
number  of  cases,  not  only  in  the  state  but  in  federal  courts, 
involving  this  amendment.  Everybody  who  is  in  stress 
these  days  is  appealing  to  the  federal  courts  for  protection ; 
and  as  said  in  Holden  v.  Hardy6  by  the  Supreme  Court, 
these  cases  "demonstrate  that  in  passing  on  the  validity 
of  state  legislation  under  it,  this  court  has  not  failed  to 
recognize  the  fact  that  the  law  is;  to  a  certain  extent,  a 
progressive  science;  that  in  some  states  methods  of  pro- 
cedure which  at  the  time  the  Constitution  was  adopted 
were  deemed  essential  to  the  protection  and  safety  of  the 
people,  or  the  liberty  of  the  citizen,  have  been  found  to 
to  be  no  longer  necessary ;  that  restrictions  which  had  for- 
merly been  laid  upon  the  conduct  of  individuals  had 
proved  detrimental  to  their  interests;  and  other  classes 
of  persons,  particularly  those  engaged  in  dangerous  or 
unhealthy  employments,  have  been  found  to  be  in  need 
of  additional  protection;  but  this  power  of  change  is 
limited  by  the  fundamental  principles  laid  down  in  the 
Constitution." 

(Justice  Field,  in  the  opinion  in  Barbier  v.  Connolly,7 
eaid  the  Fourteenth  Amendment  in  declaring  that  no 
state  "shall  deprive  any  person  of  life,  liberty  or  prop- 
erty without  due  process  of  law,  nor  deny  to  any  per- 
son the  equal  protection  of  the  laws,"  undoubtedly  "meant, 
not  only  that  there  should  be  no  arbitrary  spoliation  of 
property,  but  that  equal  protection  and  security  should  be 
given  to  all  alike  under  like  circumstances  in  the  enjoy- 
ment of  their  personal  and  civil  right?,  that  all  persons 

« 169  U.  S.  366. 
T  113  U.  S.  27. 


THE    FOURTEENTH     AMENDMENT.  321 

should  be  equally  entitled  to  pursue  their  happiness  and 
acquire  and  enjoy  property;  that  they  should  have  like 
38  to  the  courts  of  the  country  for  the  protection  of 
their  person  and  property,  the  prevention  and  redress  of 
wrongs,  arid  the  enforcement  of  contracts;  that  no  im- 
pediment should  be  interposed  to  the  pursuits  of  anyone 
except  as  applied  to  the  same  pursuits  by  others  under  like 
circumstances;  that  no  greater  burdens  should  be  laid 
upon  one  than  are  laid  upon  others  in  the  same  calling 
and  condition ;  and  that  in  the  administration  of  criminal 
justice  no  difference  or  higher  punishment  should  be  im- 
posed upon  one  than  such  as  is  prescribed  to  all  for  like 

^y  r 
offenses.     But  neither  the  amendment,  broad  as  it  is,  nor 

any  other  amendment,  was  designed  to  interfere  with  the 
power  of  the  state,  sometimes  called  the  police  power,  to 
prescribe  regulations,  to  promote  the  health,  peace,  morals, 
education  and  good  order  of  the  people,  and  to  legislate 
so  as  to  increase  the  industries  of  the  state,  develop  its 
resources,  and  add  to  its  wealth  and  prosperity.  From  the 
very  necessity  of  society,  legislation  of  a  special  character, 
having  these  objects  in  view,  must  often  be  had  in  cer- 
tain districts,  such  as  for  draining  marshes  and  irrigat- 
ing arid  plains.  Special  burdens  are  often  necessary 
for  general  benefit — for  supplying  water,  preventing  fires, 
lighting  districts,  cleaning  streets,  opening  parks,  and 
many  other  objects.  Regulations  for  these  purposes  may 
press  with  more  or  less  weight  upon  one  than  another,  but 
they  are  designed  not  to  impose  unequal  or  unnecessary 
restrictions  upon  anyone,  but  to  promote,  with  as  little 
individual  inconvenience  as  possible,  the  general  gf*** 
Though  in  many  respects  necessarily  special  in  their  char- 


322  RIGHTS    AND    PRIVILEGES    UXDER 

acter,  they  do  not  furnish,  jnst  ground  of  complaint  if 
they  operate  alike  upon  all  persons  arid  property  under  the 
same  circumstances  and  conditions.  Class  legislation, 
discriminating  against  some  and  favoring  others,  is  pro- 
hibited; but  legislation  which,  in  carrying  out  a  public 
purpose,  is  limited  in  its  application,  if  within  the  sphere 
of  its  operation  it  affects  alike  all  persons  similarly  sit- 
uated, is  not  within  the  amendment.  In  the  execution 
of  admitted  powers  unnecessary  proceedings  are  often  re- 
quired, which  are  cumbersome,  dilatory  and  expensive, 
yet,  if  no  discrimination  be  made,  and  no  substantial 
right  be  impaired,  they  are  not  obnoxious  to  any  consti- 
tutional objection.  The  inconveniences  from  this  clause 
in  the  administration  of  the  law  are  matters  entirely  for 
the  consideration  of  the  state ;  they  can  be  remedied  only 
by  the  state." 

"The  right  to  the  equal  protection  of  the  laws  is  not 
denied  by  a  state  court  when  it  is  apparent  that  the 
same  law  or  course  of  proceedings  would  be  applied  to 
any  other  person  in  the  state  under  similar  circumstances 
and  conditions.  "8 

There  can  not  be  distinctions  in  granting  or  enforcing 
rights,  or  in  imposing  burdens,  that  are  arbitrary,  unfair 
distinctions,  those  made  under  such  circumstances  as 
make  them  unequal,  not  called  for  by  facts  justifying 
such  distinctions. 

("The  inhibition  that  no  state  shall  deprive  any  person 
witkin  its  jurisdiction  of  the  equal  protection  of  the  laws, 
was  designed  to  prevent  any  person,  or  class  of  persons, 

*  Tinsley  v.  Anderson,  171  U.  S.  101 ;  State  v.  Broadbelt,  89  Md. 
565,  73  Am.  St.  R.  201. 


TUB    FOURTEENTH     AMENDMENT.  323 

from  being  singled  out  as  a  special  subject  for  discrimin- 
ating and  hostile  legislation."9  J 

"The  object  of  the  Fourteenth  Amendment  in  respect 
to  citizenship  was  to  preserve  equality  of  right  and  to 
prevent  discrimination  between  citizens,  but  not  to  radi- 
cally change  the  whole  theory  of  the  relations  of  the  state 
and  federal  government  to  each  other  and  of  both  govern- 
ments to  the  people."10 

Classification  Lawful — In  various  cases,  such  as  tax 
laws,  and  in  many  other  instances,  the  legislature  may 
classify  persons  and  things  in  the  administration  of  gov- 
ernment. It  does  not  follow  that  because  one  man  of  one 
class  happens  to  be  treated  by  law  differently  from  an- 
other in  another  class  that  th§  equality  clause  is  violated. 
It  "only  requires  the  same  means  and  methods  to  be  ap- 
plied impartially  to  all  the  constituents  of  a  class,  so  that 
the  law  shall  operate  equally  and  uniformly  upon  all  per- 
sons in  similar  circumstances."  IJ 

The  state  may,  consistently  with  this  clause,  classify 
subjects  of  taxation  and  apply  different  methods  of  val- 
uation and  taxation  consistently  with  the  federal  Consti- 
tution.12 

"It  prescribes  no  rigid  equality,  and  permits  to  the  dis- 
cretion and  wisdom  of  the  state  a  wide  latitude  as  far  as 
the  interference  of  this  court  is  concerned.  Nor  with  the 

»Pembina  v.  Pennsylvania,  125  U.  S.  188.  See  Steed  v.  Harvey, 
72  Am.  St.  R.  789. 

10  In  re  Kemmler,  136  U.  S.  436. 

"Kentucky  R.  R.  Tax  Cases,  115  U.  S.  321. 

12  Kentucky  R.  R.  Tax  Cases,  115  U.  S.  321;  Magoun  v.  Illinois, 
170  U.  S.  283;  Home  Company  v.  New  York,  134  U.  6.  594;  State 
v.  Broadbelt,  89  Md.  565 ;  73  Am.  St.  R.  201 ;  New  York  v.  N.  Y. 
Clearing  House,  179  U.  S.  — ;  American  Sugar  Co.  v.  Louisiana,  179 
1.  8.  89. 


324  RIGHTS    AND    PRIVILEGES    UNDER 

•jLf  impolicy  of  the  law  has  it  concern.  'Mr.  Justice  Field  said, 
in  Mobile  County  v.  Kimball,  102  U.  S.  691,  that  this 
court  is  not  a  harbor  in  which  can  be  found  a  refuge  from 
ill-advised,  unequal  and  oppressive  legislation.  It  is 
hardly  necessary  to  say  that  hardship,  impolicy  or  injus- 
tice of  state  laws  is  not  necessarily  an  objection  to  their 
constitutional  validity.  The  rule,  therefore,  is  not  a  sub- 
stitute for  municipal  law ;  it  only  prescribes  that  that  law 
have  the  attribute  of  equality,  indisriminate  operation, 
and  equality  of  operation  does  not  mean  on  persons  merely 
as  such,  but  on  persons  according  to  their  relations.  In 
some  circumstances  it  may  not  tax  A  more  than  B,  but 
if  A  be  of  a  different  trade  or  profession  than  B  it  may. 
And  in  matters  not  of  taxation,  if  A  be  a  different  kind 
of  corporation  than  B,  it  may  subject  A  to  a  different 
rule  of  responsibility  to  servants  than  B,  Missouri  Pacific 
Railroad  v.  Mackey,  127  U.  S.  205;  to  a  different  meas- 
ure of  damages  than  B,  Minneapolis  Railway  v.  Beckwith, 
129  U.  S.  26 ;  and  it  permits  special  legislation  in  all  its 
varieties,  Minneapolis,  etc.,  v.  Herrick,  127  U.  S.  210; 
Duncan  v.  Missouri,  152  U.  S.  377.  In  other  words,  the 
state  may  distinguish,  select  and  classify  objects  of  leg- 
islation, and  necessarily  this  power  must  have  a  wide 
range  of  discretion.  It  is  not  without  limitations,  of 
course.  'Clear  and  hostile  discriminations  against  par- 
ticular persons  and  classes,  especially  such  as  are  of  un- 
usual character,  unknown  to  the  practice  of  our  govern- 
ments, might  be  obnoxious  to  the  constitutional  prohibi- 
tion/ said  Mr.  Justice  Bradley  in  Bells  Gap  Railroad  v. 
Pennsylvania,  134  U.  S.  232,  237.  And  Mr.  Justice 
Brewer,  in  Gulf,  etc.,  Railway  v.  Ellis,  165  U.  S.  150, 


THE     FOURTEENTH     AMENDMENT.  325 

after  a  careful  consideration  of  many  cases,  said:  'The 
mere  fact  of  classification  is  not  sufficient  to  relieve  a 
statute  from  the  reach  of  the  equality  clause  of  the  Four- 
teenth Amendment,  and  in  all  cases  it  must  appear,  not 
merely  that  a  classification  has  been  made,  but  also  that 
it  is  based  on  some  reasonable  ground — something  which 
bears  a  just  and  proper  relation  to  the  attempted  clas- 
sification, and  is  not  a  mere  arbitrary  selection.' '  Jus- 
tice McKenna  in  McGoun  v.  Illinois.13  See  Atchison,  T. 
&  St.  F.  K.  K.  v.  Mathews.14 

Fellow-Servant  Statutes. — The  common  law  does  not  ^ 
hold  a  master  liable  for  damages  suffered  by  one  servant 
while  in  his  master's  service  from  the  wrongful  negli- 
gence of  another  servant  of  the  common  master.  A  stat- 
ute changed  this  common  law  rule,  and  made  railroad 
companies  liable  for  damages  in  such  case,  the  act  apply- 
ing only  to  railroads.  It  was  held  to  be  consistent  with 
the  equality  clause  of  the  Fourteenth  Amendment,  and  a 
valid  regulation  under  the  police  power  of  the  state.15 
The  court  said  that  railroad  service  was  subject  to  pe- 
culiar hazards,  and  that  this  consideration  justified  the 
application  of  the  act  to  railroads  alone.  t^ 

Fencing  Railroads. — An  act  requiring  railroad  compa- 
nies to  fence  their  roads,  and  making  them  liable  for 
double  damages  for  stock  killed  in  default  of  such  fence, 
was  held  not  to  deny  equal  protection  to  such  companies, 

is  170  U.  S.  283. 
i*  174  U.  S.  p.  105. 

"  Railway  v.  Mackey,  127  U.  S.  205 ;  Tullis  v.  Lake  Erie  Co.  175 
U.  S.  348. 


326  RIGHTS    AND    PRIVILEGES    UNDER 

or  to  deprive  them  of  property  without  due  process  of 
law.16 

Colored  Jurors. — The  right  of  colored  persons  to  sit  on 
juries  has  been  several  times  considered  in  the  Supreme 
Court.  In  the  first  case  on  the  subject17  the  validity  of 
a  state  statute  limiting  jurors  to  white  persons  was  in- 
volved. The  court  held  that  the  Fourteenth  Amendment 
is  one  of  a  series  of  constitutional  provisions  having  a 
common  purpose,  namely,  to  secure  an  emancipated  race, 
held  in  slavery  through  many  generations,  all  the  civil 
rights  enjoyed  by  the  superior  race,  and  give  it  the  pro- 
tection of  the  federal  government  in  the  enjoyment  of 
such  rights  whenever  denied  by  the  state ;  that  the  amend- 
ment not  only  gave  citizenship  and  the  privileges  of  citi- 
zenship to  persons  of  color,  but  denied  to  any  state  the 
power  to  withhold  from  them  the  equal  protection  of  the 
laws,  and  invested  congress  with  power,  by  appropriate 
legislation,  to  enforce  its  provisions ;  that  though  prohib- 
itory in  terms,  the  amendment  confers,  aby  necessary  im- 
plication," a  positive  immunity  of  right  most  valuable 
to  persons  of  the  colored  race — a  right  to  exemption  from 
unfriendly  legislation  against  them  distinctively  as  col- 
ored— exemption  from  discriminations  imposed  by  public 
authority  which  imply  legal  inferiority  in  civil  society, 
lessen  the  security  of  their  rights,  and  are  steps  reducing 
them  to  the  condition  of  a  subject;  that  the  West  Vir- 
ginia statute  singled  out  and  denied  to  colored  citizens 
the  right  and  privilege  of  participating  in  the  adminis- 
tration of  the  law  as  jurors  because  of  color,  though  qual- 

i«  Missouri  Pac.  Co.  v.  Humes,  115  U.  S.  512. 
IT  Strauder  v.  West  Virgina,  100  U.  S.  303. 


THB    FOURTEENTH     AMENDMENT.  327 

ified  in  all  other  respects,  practically  put  a  brand  upon 
them,  and  a  discrimination  against  them  forbidden  by  the 
amendment;  that  it  denied  to  them  the  equal  protection 
of  the  laws,  since  the  constitution  of  juries  is  a  very  es- 
sential part  of  the  protection  which  trial  by  jury  is  in- 
tended to  secure;  that  the  very  idea  of  a  jury  is  that  it 
is  a  body  composed  of  peers  or  equals  of  the  persons  whose 
rights  it  is  selected  to  determine;  that  is,  of  persons  hav- 
ing the  same  legal  status  in  society  as  that  which  he  holds ; 
that  where  the  state  statute  secures  to  every  white  man 
right  of  trial  by  jury,  selected  from  and  without  discrim- 
ination against  his  race,  and  at  the  same  time  permits 
and  requires  such  discrimination  against  the  colored  race, 
because  of  race,  the  latter  is  not  equally  protected  by  law 
with  the  former.  The  court  said  that  the  amendemnt 
meant  to  declare  that  "the  law  in  the  state  shall  be  the 
same  for  the  black  as  for  the  white;  that  all  persons, 
whether  colored  or  white,  shall  stand  equal  before  the  laws 
of  the  state,  and  in  regard  to  the  colored  race,  for  whose 
protection  the  amendment  was  primarily  designed,  that  no 
discrimination  shall  be  made  against  them."  The  court 
held  that  "protection  of  life  and  liberty  against  race  or 
color  prejudice  was  a  right,  a  legal  right,  under  the  amend- ' 
ment.  And  how  can  it  be  maintained  that  compelling  a 
colored  man  to  submit  to  a  trial  for  his  life  by  a  jury 
drawn  from  a  panel  from  which  the  state  has  expressly 
excluded  every  man  of  his  race  because  of  color  alons, 
however  well  qualified  in  other  respects,  is  not  a  denial  to 
him  of  equal  protection  ?"  The  court  was  express  to  say 
that  it  did  not  deny  the  right  of  a  state  to  make  qualifica- 
tions for  jurors,  and  in  so  doing  to  make  discriminations ; 


328  RIGHTS    AND    PRIVILEGES    UNDER 

that  it  might  confine  the  selestion  to  males,  to  freeholders, 
to  citizens,  to  persons  within  certain  ages,  or  to  persons 
having  educational  qualifications;  that  the  amendment 
was  never  meant  to  prohibit  this ;  that  its  aim  was  to  pro- 
hibit discrimination  because  of  race  or  color.  The  West 
Virginia  statute  was  held  void  and  the  convictior  was  an- 
nulled by  reason  of  the  violation  of  the  Fourteenth 
Amendment.  Same  as  to  grand  juries.18  It  quashes  in- 
dictment. 

But  note  that  though  at  first  blush  one  might  think  so, 
yet  this  doctrine  does  not  demand  mixed  juries  in  every 
case  where  a  colored  man  is  tried,  or,  indeed,  in  any  case ; 
the  decision  referred  to  does  not  import  that  a  colored 
person  can  not  be  lawfully  tried  by  a  jury  composed 
wholly  of  whites.  He  may  be  so  tried.  He  is  not  entitled 
to  demand  that  one  or  more  or  half  of  the  jury  shall  be 
colored,  provided  the  law  of  the  state  do  not  exclude  col- 
ored persons  from  jury  service.  If  the  law  does  not  do 
this,  the  mere  failure  to  summon  colored  persons  for 
service  on  juries  does  not  affect  the  panel  summoned,  or 
a  particular  jury  drawn  from  that  panel,  so  as  to  affect  a 
conviction  or  demand  a  removal  of  the  case  from  a  state 
to  a  national  court.19  But  the  !N"eal  Case  holds  that  though 
the  state  jury  law  does  not  in  words  exclude  colored  per- 
sons, yet  if  the  authorities  authorized  to  select  juries  do, 
in  fact,  exclude  colored  men  merely  because  colored,  that 
exclusion  gives  right,  not  to  removal  to  a  federal  court, 

ia  Carter  v.  Texas,  177  U.  S.  442,  20  Sup.  Ct.  687;  Collins  r. 
State,  60  S.  W.  42. 

i»Neal  v.  Delaware,  103  U.  S.  370;  Virginia  v.  Rives,  100  U.  S. 
313;  Andrews  v.  Swartz,  156  U.  S.  272;  Williams  v.  Mississippi, 
170  U.  S.  213:  Bullock  v.  State,  47  Atl.  62. 


THE    FOURTEENTH     AMENDMENT.  329 

but  right  to  quash  in  the  state  court  the  indictment  or  the 
trial  jury,  which,  in  case  of  refusal  by  the  state  court, 
can  be  enforced  by  writ  of  error  to  the  United  States  Su- 
preme Court.  But  this  exclusion,  and  that  it  is  because 
of  race,  must  affirmatively  appear.20 

It  has  been  held  that  where  the  highest  court  of  a  state 
had  declared  void  its  jury  law  because  of  such  exclusion 
of  colored  persons,  and  instructed  officers  to  disregard  race 
in  selecting  jurors,  though  the  statute  remained  un- 
changed, and  in  a  prosecution  subsequently  instituted  the 
jury  was  wholly  of  whites,  it  was  valid,  and  that  there 
was  no  right  of  removal,  but  that  the  indictment  found 
prior  to  such  decision  should  be  quashed.  The  difference 
between  this  case  and  the  Strauder  Case  is  that  in  the 
Strauder  Case  the  state  court  held  the  state  law  valid  and 
refused  Strauder  the  right  to  quash  the  panel.21 

"The  principle  reaffirmed  that  while  a  state  may,  con- 
sistently with  the  purposes  for  which  the  Fourteenth 
Amendment  was  adopted,  confine  the  selection  of  jurors 
to  males,  freeholders,  citizens,  persons  within  certain  ages, 
or  to  persons  having  educational  qualifications,  and,  while 
a  mixed  jury  in  the  particular  case  is  not,  within  the 
meaning  of  the  constitution,  always  or  absolutely  neces- 
sary to  the  enjoyment  of  the  equal  protection  of  the  laws, 
and  therefore  an  accused,  being  of  the  colored  race,  can 
not  claim  as  a  matter  of  right  that  his  race  shall  be  rep- 
resented on  the  jury :  yet  a  denial  to  citizens  of  African 
race,  because  of  their  color,  the  right  or  privilege  accorded 
to  white  citizens  of  participating  as  jurors  in  the  admin- 

20  Bush  v.  Kentucky,  107  U.  S.  110. 

21  Bush  v.  Kentucky,  107  U.  S.  110. 


RIGHTS    AND    PRIVILEGES    UNDER 

istration  of  justice  would  be  a  discrimination  against  the 
former  inconsistent  with  the  amendment,  and  within  the 
power  of  Congress  by  appropriate  legislation  to  prevent."22 
The  court  upheld  the  act  of  Mississippi  requiring  for 
jury  service  that  the  party  should  be  able  to  read  and 
write  and  entitled  to  vote. 

vV  Employment  of  Chinese. — The  constitution  of  Califor- 
nia prohibited  corporations  from  employing  Chinese,  and 
the  act  of  the  legislature  imposed  a  penalty  for  so  doing 
— a  signal  instance  of  denial  of  liberty  of  action  and  con- 
tract to  both  railroad  and  Chinese,  and  to  earn  a  living. 
This  was  held  a  denial  of  equal  protection  of  the  law. 
Citizenship  is  not  a  requisite  for  this  protection,  resi- 
dence only  being  sufficient.  It  was  held  that  the  Chinese 
resident,  though  not  a  citizen,  was  a  "person"  under  the 
amendment.  The  court  held  that  the  act  violated  the 
Civil  Rights  Act,  giving  right  of  contract.  The  case  is 
a  luminous  one  and  strong.23 

Wrong-  by  Individuals. — This  clause  of  equal  protection 
has  no  application  to  wrong  done  by  one  individual  to 
another.  The  trespasser  or  murderer  is  only  the  individ- 
ual trespasser  or  murderer,  acting  in  his  own  wrong,  not 
for  the  state,  but  against  the  will  of  the  state,  and  the 

'  amendment  does  not  touch  his  wrong,  as  it  deals  only 
with  action  by  the  state.24 

Foreign  Corporations  may  be  excluded  wholly  from  doing 
business  in  a  state,  or  be  allowed  to  do  so  on  such  terms 

22  Gibson  v.  Mississippi,  162  U.  S.  565. 

23  in  re  Parrott,  1  Fed.  481. 

24  Civil  Rights  Cases,   109  U.   S.  3;   U.  S.  v.  Harris,   106  U.  S. 
629;  Va.  v.  Rives,  100  U.  S.  313. 


THE    FOURTEENTH     AMENDMENT.  331 

as  the  state  may  prescribe,  without  a  violation  of  the 
equality  clause  of  the  Fourteenth  Amendment.25  If  ad- 
mitted to  do  business  in  the  state,  the  state  may  deal  with 
them  as  domestic  corporations.26  A  corporation  is  a  "per- 
son" under  the  Fourteenth  Amendment;  but  not  being 
a  "citizen"  of  the  state  of  its  incorporation,  it  is  not 
entitled  to  privileges  and  immunities  in  other  states  like 
a  citizen  has  in  his  own  state  under  Article  4,  Section  2.27 

Right  to  Assemble  to  Petition  Congress  for  redress  of 
grievances  is  a  right  of  a  citizen  of  the  United  States 
protected  by  the  amendment;  but  the  right  of  the  people 
to  assemble  for  other  purposes  is  not  one  conferred  by  the 
Fourteenth  Amendment,  as  it  comes  only  from  the  state, 
pertains  only  to  the  state's  citizens  as  such,  and  seems  to 
be  not  a  right  protected  by  the  amendment.  It  is  left  to 
the  states.28 

Discrimination,  Class  Legislation. — "It  is  no  objection  to 
a  municipal  ordinance  prohibiting  one  kind  of  business 
within  certain  hours  that  it  permits  other  and  different 
kinds  of  business  to  be  done  within  those  hours.  Mu- 
nicipal restrictions  imposed  upon  one  class  of  persons  en- 
gaged in  a  particular  business,  which  are  not  imposed  on 
others  engaged  in  the  same  business  and  under  like  cir- 
cumstances, impair  the  equality  which  all  can  claim  in 
in  the  enforcement  of  the  laws.  When  the  general  se- 
curity and  welfare  require  that  a  particular  kind  of  work 

25  Slaughter's  Case,   13  Grat.  767 ;   Pembina  v.  Pennsylvania,  125 
U.  S.  181;    Waterpierce  Co.  v.  Texas,  177  U.  S.  28;    N.  Y.  L.  Ins. 
Co.  v.  Craven,  178  U.  S.  389;  Hooker  v.  California,  155  U.  S.  652. 

26  Orient  Co.  v.  Daggs,  172  U.  S.  557. 

27  Orient  Co.  v.  Daggs,  172  U.  S.  557. 

28  U.  S.  v.  Cruikshank,  92  U.  S.  552. 


332  RIGHTS    AND    PRIVILEGES    UXDER 

should  be  done  at  certain  times  or  hours,  and  an  ordi- 
nance is  made  to  that  effect,  a  person  engaged  in  per- 
forming that  sort  of  work  has  no  inherent  right  to  pur- 
sue his  occupation  during  the  prohibited  time."  29  It  was 
held  no  violation  of  the  amendment  that  the  ordinance 
prescribed  certain  limits  for  the  laundry  business,  and 
prohibited  it  between  ten  o'clock  in  the  evening  and  six 
in  the  morning. 

Insurance  Policy — A  statute  provided  that  in  an  action 
on  a  policy  of  fire  insurance  the  value  of  the  property 
stated  in  it  should  be  conclusive  beyond  denial  by  the  com- 
pany, less  depreciation  subsequent  to  the  date  of  the 
policy,  and  that  the  full  value  should  be  paid  for  total 
loss,  and  in  case  of  partial  loss  payment  should  be  pro- 
portionate to  that  value,  and  declaring  any  clause  in  a 
policy  contrary  thereto  void.  The  court  held  that  a 
foreign  insurance  company  was  not  by  it  deprived  of 
liberty  or  property  without  due  process,  or  denied  the 
equal  protection  of  the  laws;  and  that  a  corporation, 
while  a  "person,"  was  not  a  "citizen"  of  the  United  States 
under  the  Fourteenth  Amendment,  and  the  act,  therefore, 
did  not  abridge  privileges  or  immunities  of  a  citizen  con- 
trary to  the  amendment.30 

Express  Companies. — A  statute  defined  for  taxation  an 
express  company  to  be  one  in  the  business  of  transporta- 
tion on  contracts  for  hire  with  railroad  or  steamboat  com- 
panies. Held  that  the  statute  did  not  discriminate 
against  express  companies  in  favor  of  others  carrying  ex- 

29  Soon  Hing  v.  Crowley,  113  U.  S.  703;  Barbier  v.  Connolly,  115 
U.  S.  27. 

so  Orient  Co.  v.  Daggs,  172  U.  S.  557. 


THE     FOURTEENTH     AMENDMENT.  333 

press  matter  on  other  conditions  or  under  different  cir- 
cumstances.31 

Charges  of  Suretyship — An  act  allowing  fiduciaries  to 
charge  as  part  of  the  expenses  of  executing  their  trust  a 
reasonable  sum  paid  to  a  trust  company  to  go  the  security 
of  such  fiduciary  was  held  not  to  be  class  legislation  or 
to  deny  the  owners  of  the  estate  the  equal  protection  of 
the  law,  the  reason  given  for  such  holding  being  that  such 
suretyship  was  alike  beneficial  to  all  parties  in  interest.32 

Municipal  Corporations,  Classification  for  Public  Burdens. 
— It  is  everywhere  held  that  the  state  has  unlimited  con- 
trol over  its  municipal  corporations,  except  so  far  as  its 
own  constitution  may  tie  its  hands.  Under  this  principle 
an  act  placing  five  towns  in  a  class,  and  organizing  them 
into  a  municipal  corporation,  and  putting  on  them  the 
burden  of  constructing  roads  and  bridges,  and  subjecting 
them  to  different  control  in  respect  thereto,  was  held  not 
to  deny  equal  protection  of  the  law,  contrary  to  the  Four- 
teenth Amendment. a3 

National  Flag  Advertisement — A  state  statute  prohibited 
the  use  of  the  American  flag  for  purposes  of  advertising, 
but  it  was  held  to  be  an  invasion  of  the  privileges  and 
immunities  of  citizens  of  the  United  States,  not  a  valid 
exercise  of  police  power,  and  that  the  statute  in  exempting 
from  its  operation  those  engaged  in  exhibitions  of  art  un- 
duly discriminated  in  favor  of  a  class,  and  violated  lib- 
erty.34 The  court  said  that  the  case  of  Powell  v.  Penn- 

si  Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339. 

32  Jn  re  Clark's  Estate   (Pa.  1900)  ,  46  Atl.  127. 

»3  Williams  v.  Eggleston,  170  U.  S.  304,  18  Sup.  Ct  R.  617. 

34  Ruhstratt  v.  People  (111.),  57  N.  E.  41,  185  111.  133. 


334  RIGHTS    AND    PRIVILEGES    UNDER 

sylvania,35  in  holding  that  the  enjoyment  by  citizens,  on 
terms  of  equality  with  all  others  under  similar  circum- 
stances, of  the  privilege  of  pursuing  an  ordinary  calling 
or  trade,  and  of  acquiring,  holding  and  selling  property 
was  a  right  under  the  Fourteenth  Amendment,  states  a 
principle  which  was  sound;  that  the  right  of  the  state 
to  promote  the  general  welfare  must  be  so  exercised  as 
not  to  impair  the  fundamental  right  of  life,  liberty  and 
property.  The  court  said  that  advertising  was  a  valuable 
means  and  instrumentality  in  the  conduct  and  further- 
ance of  private  business,  and  that  the  use  of  the  national 
flag  therein  was  calculated  to  advance  the  individual's  suc- 
cess, and  was  productive  of  no  public  harm,  not  at  all  det- 
rimental to  public  peace  or  welfare  or  interest,  and  that 
the  act,  therefore,  could  not  be  justified  as  a  reasonable 
exercise  of  the  police  power  for  healthful  public  ends. 
The  court  denied  that  the  opinion  and  decision  of  a  leg- 
islature that  an  act  is  one  in  the  proper  exercise  of  the 
police  power  is  final  and  conclusive  upon  the  courts  upon 
the  question  of  the  necessity  of  the  act,  and  asserted  the 
right  of  the  judiciary  to  pass  upon  the  question  whether 
the  act  was  one  of  reasonable  police  regulation.  The  court 
also  held  that  the  national  flag  .having  been  adopted  as 
the  emblem  of  national  sovereignty  by  national  law,  the 
right  to  use  it  in  a  manner  not  unlawful,  for  lawful  bus- 
iness purposes  as  an  advertisement,  was  a  privilege  per- 
taining to  a  citizen  of  the  United  States  as  such,  and  that 
the  act  thus  violated  the  Fourteenth  Amendment.  The 
opinion  is  valuable  for  general  principles. 

as  127  U.  S.  678. 


TUB    FOURTEENTH     AMENDMENT.  335 

Attachment  Bonds. — An  act  required  such  bonds  in  at- 
tachments against  residents,  but  not  in  attachments  against 
non-residents,  and  it  was  held  not  to  deny  due  process  or 
equal  protection  of  the  law.36 

Attorney's  Fee  in  Costs. — A  statute  providing  that  in 
actions  against  railroad  companies  for  damages  from  fire 
caused  by  locomotives  an  attorney's  fee  should  be  included 
in  the  judgment  in  favor  of  the  injured  party  was  held 
not  a  discrimination  or  deprivation  of  property  contrary 
to  the  Fourteenth  Amendment.37 

In  Railway  v.  Ellis38  was  involved  a  statute  which  al- 
lowed an  attorney's  fee  of  $10,  to  be  taxed  in  the  costs  in 
case  of  recovery  in  favor  of  a  plaintiff  having  a  claim  less 
than  $50  against  a  railroad  company  not  paid  within  thirty 
days  after  its  presentation,  for  labor,  damages,  over- 
charges, or  for  stock  killed  or  injured,  and  the  act  was 
held  to  be  repugnant  to  the  Fourteenth  Amendment,  be- 
cause denying  equal  protection  of  the  law,  as  it  applied 
only  against  railroad  companies  and  in  favor  only  of  per- 
sons having  certain  demands,  not  to  all  alike. 
.  Railroads. — Prevention  of  Fire — An  act  imposed  a  tax 
to  provide  against  damage  from  fire  by  certain  precau- 
tions against  it,  but  it  excluded  railroads  from  the  benefit 
of  the  act,  though  their  property  was  subject  to  the  tax. 
The  act  was  held  void  as  denying  the  equal  protection 
of  the  law  secured  by  the  Fourteenth  Amendment.39 

se  Central  Loan  Co.  v.  Campbell,  173  U.  S.  84,  19  Sup.  Ct.  346. 

3TAtchison,  etc.  Co.  v.  Mathews,  174  U.  S.  96;  Pacific  Co.  v. 
Seibert,  142  U.  S.  339;  Insurance  Co.  v.  Bayha,  8  Kans.  App.  169. 

s*  165  U.  S.  159,  17  Sup.  Ct.  255;  Paddock  v.  M.  P.  R.  Co.,  155 
Mo.  524. 

39Atchison,  Topeka  and   Santa  Fe  Co.  v.  Clark,  60  Kan.  826. 


RIGHTS    AND    PRIVILEGES    UNDER 

Deduction  of  Debts  from  Taxes. — An  act  allowing  a  de- 
duction of  debts  for  taxes,  but  denying  the  benefit  of  the 
act  to  railroad  companies,  was  held  to  deny  them  the  equal 
protection  of  the  law,  contrary  to  the  Fourteenth  Amend- 
ment.40 

.  Lien  for  Wages. — -A  California  act  gave  a  lien  for  wages 
to  laborers,  and  required  payment  of  such  wages  once  a 
month,  and  it  was  held  void  under  the  Fourteenth  Amend- 
ment as  class  legislation  applicable  only  against  corpora- 
tions and  in  favor  of  their  employees.  The  opinion  is 
an  able  one  upon  the  grave  subject  of  liberty  of  contract.41 

Repair  of  Viaduct  by  one  Company — A  statute  and  ordi- 
nance compelled  one  railroad  company  to  repair  a  viaduct, 
though  it  was  used  by  others,  and  they  were  held  not  to 
deny  the  equal  protection  of  the  law.42 

Tax  Exemption.— A  statute  of  West  Virginia  exempted 
tracts  of  less  than  1000  acres  of  land  from  forfeiture  for 
non-entry  for  taxation,  but  forfeited  all  other  tracts,  and 
it  was  held  not  to  be  a  denial  of  the  equal  protection  of  the 
law  contrary  to  the  Fourteenth  Amendment.  The  state 
could  tax  or  not  tax  as  it  chose  and  make  such  exceptions 
as  it  chose  under  its  power  of  taxation.43 

Contempt. — Equal  protection  of  the  law  is  not  denied 
by  a  procedure  and  punishment  for  contempt  applicable  to 
all  persons  alike.44 

Annexing  Lands  to  Cities — An  act  allowed  cities  to  an- 
nex lands  provided  they  were  not  used  for  agricultural  pur- 

<o  St.  Clara  v.  Southern  Pac.  Co.   18  Fed.  385. 

41  Johnson  v.  Goodyear,  59  Pac.  304. 

42  C.  B.  &  Q.  Co.  v.  Nebraska,  170  U.  S.  57,  18  Sup.  Ct.  513. 
« King  v.  Mullins,  171  U.  S.  404,  18  Sup.  Ct.  925. 

44  Tinsley  v.  Anderson,  171  U.  S.  101,  18  Sup.  Ct.  805. 


THE    FOURTEENTH     AMENDMENT.  337 

poses,  when  the  same  were  not  owned  by  a  corporation. 
The  lands  were  annexed  and  taxed  by  a  city.  It  was 
claimed  to  deprive  the  owner  of  property  without  due  pro- 
cess of  law  and  to  deny  equal  protection  of  the  laws;  but 
the  court,  by  Justice  McKenna,  said  that  the  owner  not 
being  a  corporation,  even  if  the  act  was  an  illegal  dis- 
crimination against  corporations,  the  plaintiff  could  not 
raise  that  question,  because  to  allow  a  party  to  complain 
there  must  not  be  a  law  alone,  but  a  law  and  its  incidence 
were  necessary  to  make  the  matter  a  justiciable  right  or 
injury,  and  hence  the  only  colorable  ground  of  complaint 
under  the  amendment  was  the  discrimination  made  be- 
tween agricultural  and  other  lands.  "The  answer  to  that 
charge  depends  on  the  power  of  the  state  to  classify  objects 
of  legislation,  necessarily  a  broad  power."  The  court  said 
it  had  often  defined  this  power.  "The  reasoning  of  the 
cases  we  need  not  repeat.  It  is  enough  to  say  that  the  rule 
of  the  Constitution  leaves  to  the  discretion  and  wisdom  of 
the  state  a  wide  latitude,  as  far  as  interference  by  this 
court  is  concerned.  It  is  not  a  substitute  for  municipal 
law ;  it  does  not  invest  power  in  this  court  to  consider  th*> 
impolicy  and  unjustness  of  state  law,  and  the  equality  it 
prescribes  is  not  for  persons  merely  as  such,  but  according 
to  their  relations."  He  then  referred  to  the  power  of  the 
legislature  to  tax  one  man  more  than  another,  under  cir- 
cumstances in  language  already  quoted  on  page  321.  He 
said  that  these  principles  had  been  affirmed  in  later  cases 
than  those  he  referred  to,  and  that  a  classification  based  on 
difference  between  fire  insurance  and  other  insurance  had 
been  sustained ;  and  also  a  difference  between  railroad  and 
other  corporations,  citing  Orient  Insurance  Company  v. 


338  RIGHTS    AND    PRIVILEGES    UNDER 

Daggs,45  and  Tullis  v.  Lake  Erie  Company.46  He  referred 
to  the  case  of  Atchison,  Topeka  and  Santa  Fe  R.  R.  Com- 
pany v.  Mathews,47  holding  that  by  reason  of  the  great 
peril  from  fires  from  locomotives  on  railroads,  it  was  in  the 
power  of  a  state  to  impose  on  them  an  attorney's  fee  and 
not  impose  it  on  an  unsuccessful  plaintiff.  He  also  re- 
ferred to  Justice  Brewer's  statement  in  Atchison,  Topeka 
£  Sante  Fe  R.  R.  v.  Mathews48  that  "it  is  of  the  essence 
of  classification  that  upon  the  class  are  cast  duties  and 
burdens  different  from  those  resting  upon  the  general 
public.  Thus  when  the  legislature  imposes  upon  a  rail- 
road corporation  a  double  liability  for  stock  killed  by 
trains  it  says,  in  effect,  that  if  suit  be  brought  for  stock 
killed  by  trains  against  a  railroad  corporation  it  must  enter 
court  under  conditions  different  from  those  resting  on  or- 
dinary suitors.  If  beaten,  it  must  pay,  not  only  the  dam- 
age which  it  has  done,  but  twice  that  amount.  If  it  suc- 
ceed, it  recovers  nothing.  On  the  other  hand,  if  it  should 
sue  an  individual  for  the  destruction  of  its  live  stock  it 
could  under  no  circumstances  recover  any  more  than  the 
value  of  that  stock.  So  it  may  be  said  in  matter  of  liabil- 
ity in  case  of  litigation  it  is  not  placed  on  an  equality  with 
other  corporations  and  individuals ;  yet  this  court  has  un- 
animously said  that  this  differentiation  of  liability,  this 
inequality  of  rights  in  the  courts,  is  of  no  significance  upon 
the  question  of  constitutionality.  Indeed,  the  very  idea  of 
classification  is  that  of  inequality ;  so  that  it  goes  without 

45  172  U.  S.  557. 

46  175  U.  S.  348. 
47174  U.   S.   96. 
48  174  U.  S.  106. 


THE    FOURTEENTH     AMENDMENT.  339 

saying  that  the  fact  of  inequality  in  no  manner  determines 
the  matter  of  constitutionality." 

In  the  case  in  which  Justice  McKenna  was  writing  he 
said  that  the  distinction  between  tracts  of  agricultural 
lands  in  a  certain  relation  to  cities  and  land  used  for  other 
purposes  in  such  relation  was  material.  He  regarded 
the  distinction  as  justified  by  the  principle  of  the  cases 
which  he  cited,  saying:  "That  principle  leaves  to  the  state 
the  adaptation  of  its  laws  to  its  conditions.  The  growth  of 
cities  is  inevitable,  and  in  providing  for  their  expansion  it 
may  be  the  judgment  of  an  agricultural  state  that  they 
should  find  a  limit  in  land  actually  used  for  agriculture. 
Such  use,  it  could  be  taken  for  granted,  would  be  only  tem- 
porary. Other  uses,  certainly  those  to  which  the  plaintiff 
puts  its  lands,  can  receive  all  benefits  of  the  growth  of  a 
city  and  not  be  moved  to  submit  to  the  burdens.  Besides, 
such  uses,  or  manufacturing  uses  adjacent  to  a  city,  may, 
for  its  order  and  health,  need  control.  Affecting  it  dif- 
ferently from  what  farming  uses  do,  may  justify,  if  not 
require,  their  inclusion  in  the  municipal  jurisdiction.  We 
think  that  within  the  latitude  which  local  government 
must  be  allowed  the  distinction  is  not  arbitrary,  and  in- 
fringes no  provision  of  the  Constitution  of  the  United 
States."49 

Taxation. — If  all  in  like  conditions  are  treated  alike 
there  is  no  violation  of  the  equality  clause  of  the  Four- 
teenth Amendment,  as  held  in  Bell's  Gap  Railroad  Com- 
pany v.  Pennsylvania,50  the  court  saying  that  the  amend- 
ment does  not  enforce  an  iron  rule  of  taxation. 

«  Clark  v.  Kansas  City,  176  U.  S.  114.     See  Amer.  Sugar  R.  Co. 
v.  Louisiana,   179  U.  S.  89,  21   Sup.  Ct.  43. 
so  134  U.  S.  232. 


310  RIGHTS    AND    PRIVILEGES    UNDER 

Corporation  Taxation. — Considering  that  corporations 
have  privileges  and  franchises  from  the  state  which  indi- 
viduals do  not  possess,  they  may  be  taxed  differently  from 
individuals  and  by  a  different  process.  Taxation  on  a  tele- 
graph company  on  so  much  of  its  line  as  is  in  the  state  is 
constitutional.51 

In  Home  Insurance  Company  v.  New  York  52  a  tax  on 
corporate  franchises  in  the  state  or  of  a  corporation  of  an- 
other state  doing  business  in  the  state,  measured  by  year- 
ly dividends,  was  held  to  be  valid.  The  court  said :  "But 
the  amendment  does  not  prevent  the  classification  of  prop- 
erty for  taxation,  subjecting  '•  one  kind  to  one  rate  and  an- 
other to  a  different  rate,  distinguishing  between  licenses, 
franchises  and  privileges,  and  visible  tangible  property 
and  between  real  and  personal  property.  Nor  does  the 
amendment  prohibit  special  legislation.  Indeed,  the  great- 
er part  of  legislation  is  special,  either  in  the  extent  to 
which  it  operates  or  the  objects  sought  to  be  obtained. 
And  when  such  legislation  applies  to  artificial  bodies,  it 
is  no  objection  if  all  such  bodies  are  treated  alike  under 
similar  circumstances  and  conditions  in  respect  to  the  priv- 
ileges conferred  upon  them  and  the  liability  to  which  they 
are  subjected." 

Thus  the  cases  clearly  establish  a  difference  between  in- 
dividuals and  corporations  in  respect  to  taxation. 

Inheritance  or  Legacy  Tax — This  taxation  has  had  long 
and  widespread  existence.  It  is  not  a  property  tax,  but 

si  Telegraph  Co.  v.  Mass.  125  U.  S.  530;  Butler  v.  Eaton,  141 
U.  S.  240;  State  Railroad  Tax  Cases,  92  U.  S.  575;  Railroad  v. 
Backus,  154  U.  S.  439. 

6-  134  U.  S.  594.     Also  W.  U.  T.  Co.  v.  Indiana,  165  U.  S.   304. 


THE    FOURTEENTH     AMENDMENT.  34! 

a  premium  or  tax  on  the  privilege  of  transmitting  es- 
tate.53 An  Illinois  act  taxes  inheritances  by  a  progressive 
process,  that  is,  certain  rate  on  a  certain  amount  of  inher- 
itance, a  greater  rate  on  a  greater  amount.  It  was  claimed 
to  violate  the  Fourteenth  Amendment,  in  denying  equal- 
ity before  the  law,  unjustly  classifying  and  placing  un- 
equal burdens  on  persons  inheriting  unequal  values;  but 
the  Supreme  Court  upheld  the  act.54  The  subject  is  fully 
considered  in  that  case.  Not  being  a  tax  on  property, 
different  rates  on  different  sums  of  inheritance  or  legacy 
would  not  violate  equality  or  uniformity.  It  is  a  tax  on 
a  privilege,  and  under  the  authorities  may  be  thus  classi- 
fied, and  the  state  may  impose  conditions,  just  as  it  can 
absolutely,  under  police  power,  control,  regulate  and  con- 
dition the  privilege  to  make  wills  of  property  or  its  de- 
scent. Like  license  tax,  the  state  may  classify,  taxing 
one  business  more  than  another,  according  to  amount 
of  business  done.  If  considered  a  property  tax,  such  dif- 
ferent rate  would  be  unconstitutional,  I  would  think,  be- 
cause a  man  can  not  be  taxed  on  property  of  one  thousand 
dollars  value  more  ratably  than  one  owning  one  hundred 
dollars.  The  power  to  impose  such  progressive  discrimi- 
nating taxation  has  been  criticised  as  socialistic  and  spolia- 
tnry,  taxing  the  wealthy,  because  wealthy,  class  legisla- 
tion denying  equality  before  the  law,  and  thus  calculated 
to  level  property  and  force  communism  in  it ;  but  under  the 
decisions  it  is  within  the  power  of  the  states  to  thus  tax 
without  violating  the  Fourteenth  Amendment.  Very  re- 

53  School  field  v.  City,  78  Va.   366;   Magoun  v.  Illinois  Trust  etc. 
170  U.  S.  288. 
s*  Magoun  v.  Illinois  Trust,  etc.  170  U.  S.  288. 


• 


342  RIGHTS    AND    PRIVILEGES    UNDER 

cent  decisions  sustain  it.55  Many  political  economists 
have  advocated  this  graduated  or  progressive  system  of 
taxation  on  incomes,  inheritances  and  ownership  of  prop- 
erty according  to  amount;  many  oppose  it.  Likely,  the 
Fourteenth  Amendment  would  forbid  discrimination  in 
taxation  on  purely  property  valuation.  As  to  incomes,  the 
federal  government  may,  by  apportionment  among  the 
states,  tax  incomes.  A  state  may  do  so,  unless  its  consti- 
tution require  equality  and  uniformity  of  taxation.  The 
state  may  tax  United  States  bonds  and  other  securities 
going  to  legatees  or  next  of  kin,  because  such  legacy  or  in- 
heritance tax  is  not  a  property  tax,  but  a  privilege  to 
make  a  will  or  pass  property  under  intestacy.56 

Freight  Charge,  Long  and  Short  Haul. — An  act  regulat- 
ing rates  on  railroads  as  to  long  and  short  haul,  prohibit- 
ing greater  rate  for  the  short  than  the  long  haul,  held  not 
to  be  contrary  to  the  Fourteenth  Amendment.57 

If  all  in  like  condition  are  regulated  alike,  the  amend- 
ment is  not  violated.58 

Partial  Police. — Though  the  amendment  does  not  im- 
pair the  legitimate  and  reasonable  exercise  of  the  police 
power  by  the  states, -as  has  been- fnrly  shows  (p.  168),  yet 
it  is  equally  clear  that  an  ordinance  must  not  be  different 
as  to  different  persons  engaged  in  the  same  employment 
under  like  conditions,  else  it  will  violate  the  equality  clause 
of  the  amendment.59 

55plummer  v.  Coler,  178  U.  S.  115,  20  Sup.  Ct.  R.  829;  Knowl- 
ton  v.  Moore,  178  U.  S.  41,  20  Sup.  Ct.  R..  747. 

5«Plummer  v.  Coler,  20  Sup.  Ct.  R.  829,  178  U.  S.  115;  Murdock 
v.  Ward,  178  U.  S.  139,  20  Sup.  Ct.  775;  U.  S.  v.  Perkins,  163  U.  S. 
625. 

ST  Chicago  etc.  Co.  v.  Minnesota,  134  U.  S.  418. 

ss  Railroad  Co.  v.  Mackey,  127  U.  S.  205. 

59  Soon  King  v.  Crowley,  113  U.  S.  703. 


THE    FOURTEENTH     AMENDMENT.  343 

Railroad  Liability  for  Negligence. — An  act  making  rail- 
roads liable  for  damages  for  injury  to  a  passenger,  except 
by  reason  of  his  own  negligence,  though  it  makes  the  com- 
pany liable  absolutely,  irrespective  of  the  question  whether 
it  is  guilty  of  negligence  or  not,  has  been  held  not  to  deny 
the  equal  protection  of  the  law,  and  valid.60 

Life  Insurance  Company. — An  act  providing  that  it  must 
pay  loss  within  the  time  required  by  the  policy,  or  pay 
twelve  percent  damages  and  attorney's  fee,  held  no  de- 
nal  of  equal  protection  of  the  law,  contrary  to  the  Four- 
teenth Amendment.61 

Jury  Challenges. — A  statute  giving  to  the  state  in  cities 
of  certain  population  more  challenges  to  jurors  than  were 
accorded  to  the  state  elsewhere  was  held  not  to  deny  the 
equal  protection  of  the  law.62 

State  Courts  and  Procedure. — State  courts  may  be  ar- 
ranged, jurisdiction  fixed,  their  procedure  fixed,  the  ef- 
fect of  their  judgments  declared,  and  one  law  made  opera- 
tive in  one  section  of  the  state,  another  in  another  section, 
without  its  being  considered  denial  of  equal  protection  un- 
der the  amendment,  if  the  legislation  touching  the  same 
be  applicable  to  all  alike  under  like  circumstances.63 

Prohibition  of  Contract. — It  may  not  be  amiss,  as  perti- 
nent to  the  equality  clause  of  the  Fourteenth  Amendment, 
to  refer  to  two  cases  elsewhere  discussed  (p.  201),  State  v. 
Goodwill64  and  State  v.  Fire  Creek  Company,65  holding 

eo  Clark  v.  Russell   (C.  C.  A.),  97  Fed.  900. 

61  Life  Insurance  Co.  v.  Yoakum,  98  Fed.  251   (C.  C.  A.). 

62  Hays  v.  Missouri,  120  U.  S.  68. 

63  Missouri  v.  Lewis,  101  U.  S.  22. 
e*  33  W.  Va.  179,  25  Am.  St.  R.  863. 
«533  W.  Va.   188,   25  Am.   St.  R.  891. 


344  RIGHTS    AND    PRIVILEGES    UNDER 

void,  as  class  legislation,  statutes  prohibiting  owners  of 
coal-mines   and   manufacturers   from   issuing  orders   on 
stores  in  payment  of  wages,  and  prohibiting  them  from 
selling  goods  to  employees  at  greater  percent  of  profit 
than  in  sales  to  others.     The  case  of  State  v.  Peel  Splint 
Company,66  as  published,  contains  contrary  doctrine  in 
the  syllabus ;  but  that  syllabus  is  no  law  in  West  Virginia, 
and  the  books  are  in  error  in  publishing  the  case  as  law  in 
West  Virginia,  because  the  court,  composed  of  four  judges, 
was  equally  divided,  and  the  case  furnishes  no  law  in  West 
Virginia,  and  does  not  at  all  overrule  the  solid  doctrine 
propounded  in  the  two  cases  of  anterior  date  just  cited. 
The  acts  involved  in  the  Peel  Splint  Company  Case  pro- 
hibited corporations  or  persons  from  paying  wages  in  or- 
ders on  stores  or  scrip  not  redeemable  in  money,  and  re- 
quired coal  to  be  weighed  to  ascertain  wages  for  its  dig- 
ging before  the  coal  should  be  screened.     Two  of  the  four 
judges  held  the  legislation  to  be  unconstitutional  as  class 
legislation;  two  held  the  legislation  valid.     It  should  be 
observed  that  the  enactment  passed  on  in  the  earlier  cases 
was  limited  to  coal  operators,  while  that  passed  on  in  the 
Peel  Splint  Case  applied  to  all  persons.     The  author  in 
the  latter  case  was  of  opinion  that  this  distinction  did 
not  relieve  the  legislation  involved  in  it  from  the  ob- 
jection that  it  deprived  of  liberty  of  contract  and  action. 
Validating  Void  Contracts.— A  statute  making  good  and 
valid  prior  loans  by  foreign  corporations  does  not  deprive 
of  property  without  due  process,  or  impair  a  contract  con- 
««36  W.  Va.  802,  15  S.  E.  1000. 


THE    FOURTEENTH     AMENDMENT.  345 

trary  to  the  federal  Constitution  or  deny  equal  protec- 
tion.67 

A  corporation  pleaded  that  its  contract  was  ultra  vires 
and  void,  and  it  obtained  judgment  in  its  favor  upon  that 
defense.  An  act  of  the  legislature  was  then  passed  vali- 
dating that  contract.  It  was  held  that  the  act  did  not  de- 
prive the  corporation  of  its  property  without  due  process 
or  deny  it  equal  protection  of  the  law,  and  that  the  act 
was  valid,  constitutional  legislation  in  the  exercise  of 
lawful  legislative  power  over  corporations.68  The  cases 
seem  to  hold  that  the  legislature  has  more  power  to  legal- 
ize contracts  of  corporations  by  retroactive  acts  than  it  has 
in  the  case  of  contracts  by  private  individuals.  If  the 
question  were  res  Integra,  it  might  be  open  to  doubt. 
There  is  also  a  general  doctrine  found  in  the  cases  that  the 
legislature  may,  by  retroactive  act,  cure  defects  and  irregu- 
larities in  deeds,  contracts,  etc.,  which  it  might,  by  leg- 
islation in  advance,  dispense  with.  The  law  as  to  cura- 
tive statutes  found  in  the  books  lays  down  this  propo- 
sition. 

TTsury  by  Buildiig  Associations. — Upon  the  theory  that 
such  associations  are  mutual  associations,  for  mutual  bene- 
fit of  members,  quasi  partnerships,  so  that  payment  of 
the  interest  and  premiums,  though  exceeding  in  the  run- 
ning time  of  the  loan  lawful  interest,  redound  to  the  in- 
terest of  the  party  himself,  many  decisions  go  to  exempt 
them  from  the  defense  of  usury ;  69  but  I  think  it  may  be 

«T  Gross  v.  U.  S.  Mortgage  Co.  108  U.  S.  477. 
«s  Steele  Company  v.  Erskine  (C.  C.  A.),  98  Fed.  215. 
•»  Reeve  v.  Ladies'  Association,  56  Ark.  335 ;   Barker  v.  Bigelow, 
15  Gray  130. 


346  RIGHTS    AND    PRIVILEGES    UNDER 

stated  that  but  for  the  statutes  found  in  most  states 
exempting  building  associations  from  the  defense  of 
usury,  they  would  be  subject  to  it.70  These  statutes  have 
generally  been  held  constitutional,  and  I  suppose  there 
can  be  little  doubt  of  this,  considerad  alone  under  the 
state  constitutions.  I  have  not,  however,  seen  any  case 
where  it  was  considered  whether  the  acts  referred  to  deny 
to  borrowers  the  equal  protection  of  the  law  contrary  to 
the  Fourteenth  Amendment.  The  cases  consider  the  mat- 
ter under  the  prohibition  found  in  some  state  constitu- 
tions against  special  or  local  as  distinguished  from  general 
laws  —  a  different  question  from  that  suggested  under  the 
Fourteenth  Amendment.  One  case  does  consider  it  under 
a  state  constitution  prohibiting  acts  granting  "special  or 
exclusive  privilege  or  franchise."71  That  clause  more  near- 
ly resembles  the  question  upon  which  I  have  doubts,  and 
the  case  held  the  exemption  from  the  defense  of  usury 
valid.  That  case  involved  the  question  whether  a  special 
privilege  could  be  granted.  The  question  which  I  put  is, 
Does  this  exemption,  by  depriving  a  certain  class  of  bor- 
rowers of  the  protection  afforded  by  the  law  against  usury, 
leaving  to  other  borrowers  its  benefit,  deprive  them  of  the 
equal  protection  of  the  law,  contrary  to  the  Fourteenth 
Amendment?  Man  has  always  enjoyed  the  protection 
of  the  law  forbidding  usury  ever  since  Moses  proclaimed 
the  law  of  God,  "If  thy  brother  be  waxen  poor  and  fallen 
in  decay  with  thee,  then  thou  shalt  relieve  ;  yea  though  he 
be  a  stranger,  or  sojourner,  that  he  may  live  with  thee. 


v.  Wheeling,  etc.  19  W.  Va.  676. 
7i  Vermont,  etc.  Co.  v.  Whitehead,  2  N.  Dak.  82,  35  Am.  &  Eng, 
Corp.  Cas.  250. 


THE    FOURTEENTH     AMENDMENT.  347 

Take  thou  no  usury  of  him,  or  increase,  but  fear  thy 
God,  that  thy  brother  may  live  with  thee.  Thou  shalt 
not  give  him  thy  money  upon  usury,  nor  lend  him  thy 
victuals  for  increase."  The  Church  in  the  Middle  Ages 
utterly  condemned  all  usury,  even  the  slightest  interest. 
Usury  once  meant  any  percent,  all  percent  of  increase; 
now  it  means  interest  above  legal  rate.  This  prohi- 
bition against  usury  continues  to  be  law  today.  These 
usury  laws  have  in  all  ages  been  deemed  by  lawgivers  as 
wise  and  salutary  for  the  millions  of  people,  and  those 
who  enjoy  them  today  number  millions.  Those  laws 
were  made  to  protect  the  needy,  the  unfortunate,  the  fail- 
ing, the  poor,  from  oppressions  and  undue  exaction,  to 
save  the  very  homes  of  the  people,  to  secure  their  peace 
and  happiness.  They  are  laws  made  for  the  public  weal, 
for  the  protection  of  which  laws  all  alike  may  call.  They 
are  not  like  laws  classifying  different  persons  engaged 
in  differing  business  for  purposes  of  taxation  and  police, 
but  are  laws  applicable  to  millions.  Those  who  today  do 
not  need  them  may  sadly  need  them  to-morrow.  Those 
laws  can  not  be  said  to  apply  only  to  a  class  specially 
circumstanced.  They  are  for  all.  If  this  can  be  said  of 
any  laws,  this  protective  feature,  it  can  be  said  surely  of 
the  anti-usury  laws.  The  statutes  exempting  building 
associations  from  the  application  of  the  law  against 
usury  not  only  favor  these  building  associations  over 
all  other  lending  corporations  and  persons,  thus  being 
class  legislation  in  favor  of  one  class,  but,  what  is 
more  serious,  they  take  from  a  certain  class  of 
debtors  the  equal  protection  of  laws  made  for  all  in  debt, 
leaving  their  benefit  to  all  other  debtors.  Is  this  classi- 


348  RIGHTS    AND    PRIVILEGES    UNDER 

fication  justifiable  as  one  called  for  by  any  public  need  or 
policy?  Is  it  to  meet  a  public  general  want?  Was  it 
made  that  the  public  at  large  might  be  benefited?  I  do 
not  see  it  plainly  in  that  light.  If  these  questions  can 
not  be  answered  in  the  affirmative,  the  Fourteenth  Amend- 
ment, by  its  equality  clause,  must  declare  these  statutes 
releasing  building  associations  from  the  defense  of  usury 
void.  I  have  been  lately  led  to  doubt  them,  under  this 
equality  clause  of  that  amendment.  The  Maryland  court 
held  that  the  legislature  can  not  allow  a  certain  class  of 
corporations  to  loan  at  a  higher  rate  of  interest  than 
others.72 

Weekly  Payment  of  Wages — Legislation  requiring  rail- 
road corporations  to  pay  wages  weekly,  making  them  a 
lien,  with  attorney's  fee,  was  held  not  violative  of  the 
equal  protection  clause  of  the  Fourteenth  Amendment,  and 
not  to  take  property  without  due  process  of  law.73 

State  Court  Decisions. — When  one  has  had  a  fair  trial 
in  a  state  court,  and  his  rights  are  measured  by  laws  alike 
applicable  for  all,  though  he  be  deprived  of  property  by 
adverse  result  of  the  trial,  the  proceeding  is  due  process 
under  the  Fourteenth  Amendment.  The  fact  that  a  rail- 
road is  by  the  judgment  held  liable  for  damages  for  cut- 
ting off  access  to  an  adjoining  lot  to  and  from  the  street, 
whereas  the  owner  is  denied  damages  for  injury  from 
the  construction  of  a  railroad  by  the  company  on  its 
own  ground  on  the  other  side  of  the  street,  is  no  denial 

72  Citizens'   Security   Co.   v.   Wheeler,   48   Md.   455. 

73  Skinner  v.  Garnett  Co.  96  Fed.  735. 


TEE    FOURTEENTH     AMENDMENT.  349 

of  the  equal  protection  of  the  law,  contrary  to  the  Four- 
teenth Amendment74 

One  convicted  of  murder  in  a  state  court  was  sentenced, 
and  the  judgment  was  affirmed  by  the  state  Supreme 
Court,  that  court  fixing  another  day  for  the  execution  of 
the  sentence.  After  the  term  he  asked  to  amend  the  record 
to  show  that  he  was  not  present  in  the  appellate  court 
when  the  affirmance  of  his  sentence  was  made,  but  the 
court  refused  to  amend,  because  the  term  had  closed.  The 
law  of  the  state  thus  announced  by  its  court  was  appli- 
cable to  all  alike,  and  its  enforcement  against  the  ac- 
cused was  held  no  denial  of  the  equal  protection  of  the 
laws.75 

Taxation  of  Rolling  Stock. — An  act  distributing  for  tax- 
ation the  rolling  stock  of  railroads  among  several  coun- 
ties on  their  lines  and  there  taxing  it,  instead  of  taxing 
it  at  the  place  of  location  of  the  chief  office  of  the  rail- 
roads, as  in  case  of  other  corporations  and  individuals, 
was  held  no  denial  of  equal  protection  contrary  to  the 
Fourteenth  Amendment.76 

Foreign  Corporations  not  Within  the  Jurisdiction  of  the 
State,  not  doing  business  there,  may  be  denied  participa- 
tion as  a  creditor  of  a  corporation  of  that  state  in  its  as- 
sets, and  preference  may  be  given  to  citizens  of  that  state 
in  such  assets  of  such  insolvent  corporation.  The  foreign 
corporation  is,  as  a  corporation,  not  a  citizen  of  the  state 
incorporating  it,  so  as  to  claim  the  same  right  given  by 

?4Marchant  v.  Pennsylvania  Co.  153  U.  S.  380;  Central  L.  Co. 
v.  Laidley,  159  U.  S.  103. 

"Fielden  v.  Illinois,   143  U.   S.  452. 
"Columbus,  etc.   Co.   v.   Wright,   151   U.   S.  470. 


350  RIGHTS    AND    PRIVILEGES    UNDER 

the  state  to  its  own  citizens  under  Article  4  of  the  fed- 
eral Constitution,  and  though  a  corporation  is  a  "person" 
under  the  Fourteenth  Amendment,  yet  it  is  not  "within 
the  jurisdiction"  of  the  state  so  as  to  be  protected  by  the 
amendment.  This  was  held  to  be  no  denial  of  equal  pro- 
tection of  the  laws.77  But  the  case  cited  holds  that  such 
preference  of  home  creditors  would  not  be  valid  against 
non-resident  natural  persons,  but  would  be  against  said 
Article  4. 

Bail  Arrest. — One  who  is  bail  for  another  may  arrest  a 
prisoner  in  or  out  of  the  state,  and  it  is  due  process  under 
the  Fourteenth  Amendment.  This  was  a  common  law 
right  or  power  before  the  amendment.78 

Innkeepers'  Lien — Statute  giving  it  does  not  take  prop- 
erty without  due  process  of  law,  or  deny  equal  protection, 
as  it  does  not  take  the  property,  but  only  fixes  a  lien  on 
it,  and  was  so,  though  the  act  did  not  say  how  the  lien 
should  be  enforced.79  I  would  remark,  as  another  reason 
for  this  decision,  that  the  lien  was  an  old  common  law 
lien  before  the  amendment,  and  that  its  adoption  could 
not  impair  such  lien.  The  case  says  that  samples  owned 
by  a  merchant,  in  the  hands  of  his  traveling  agent  are 
liable  to  such  lien. 

Eight-Hour  Law. — A  statute  provided  that  eight  hours 
per  day  should  be  the  limit  for  work  in  underground 
mines.  A  very  notable  case  arose  under  this  statute, 
Holden  v.  Hardy.80  The  statute  was  assailed  as  taking 

77  Blake  v.  McClung,  172  U.  S.  239;   Sully  v.  Amer.  Nat.  Bank, 
178  U.  S.  289,  20  Sup.  Ct.  935. 

78  In  re  Von  Der  Ahe,  85  Fed.  959. 

79  Brown  Co.  v.  Hunt   (la.),  39  L.  R.  A.  291. 
so  Holden  v.  Hardy,  169  U.  S.  366. 


TED    FOURTEENTH    AMENDMENT.  351 

property  without  due  process  of  law  and  denying  equal 
protection  of  the  law  and  liberty  of  contract ;  but  the  court 
held  that  the  act  was  not  obnoxious  to  such  objections. 

Use  of  Property  on  Certain  Streets. — An  ordinance  pro- 
hibiting the  use  of  property  for  any  business  on  certain 
boulevards  was  held  to  be  violative  of  the  Fourteenth 
Amendment,  as  taking  property  without  due  process  of 
law,  as  the  use  of  property  should  be  regarded  as  property 
itself,  and  not  to  be  arbitrarily  taken  away,  and  that  the 
ordinance  denied  equal  protection.81 

Anti-trust  Law. — An  act  prohibiting  combinations  in 
restraint  of  trade,  "except  agricultural  products  and  live 
stock  while  in  the  hands  of  the  producer,"  was  held  void 
as  denying  the  equal  protection  of  the  law.82 

Unequal  Tolls — An  act  reducing  tolls  on  a  particular 
turnpike  below  other  turnpikes  under  general  law  was  held 
to  be  not  necessarily  a  denial  of  the  equal  protection  of 
the  laws.83 

Unequal  Taxation. — The  taxing  power  is  very  great  in 
a  state,  as  elsewhere  shown  (p.  148)  ;  but  it  must  not  be 
legally  unequal  and  partial.  Any  assessment  of  taxes 
that  gives  the  party  any  means  of  contesting  its  validity 
or  amount,  either  before  the  amount  is  determined  or  to 
contest  subsequent  proceedings  for  collection,  is  due  proc- 
ess in  such  case,  and  not  unequal.84 

"To  bring  state  taxation  within  the  provision  relating 
to  due  process  of  law  the  case  must  be  so  clearly  an  ille- 

si  St.  Louis  v.  Dorr,  41  S.  W.  1094. 

82  In  re  Grice,  79  Fed.  627. 

83  Covington  v.  Sandford,  164  U.  S.  578,  17  Sup.  Ct.  198. 
8*Winona,  etc.  v.  Minnesota,  159  U.  S.  537. 


352  RIGHTS    AND    PRIVILEGES    UNDER 

gal  encroachment  upon  private  rights  that  it  is  really  spoli- 
ation." 85 

But  such  taxation  must  make  all  equal  before  the  law, 
that  is,  the  law  of  taxation.  It  can  not  discriminate  be- 
tween residents  and  non-residents,  taxing  either  more  than 
the  other,  or  on  subjects  not  taxed  to  the  other.86 

It  is  clear  that  a  state  or  a  municipal  corporation  by 
state  authority  may  impose  different  rates  of  taxation 
on  different  subjects,  without  violating  the  equality  clause 
of  the  Fourteenth  Amendment.  It  has  the  power  of  clas- 
sification, if  the  classification  applies  to  all  in  like  cir- 
cumstances.87 But  we  must  be  careful  to  see  whether  the 
state  constitution  limits  this  power  of  classification.  Many 
constitutions,  like  that  of  West  Virginia,  say  that  "tax- 
ation shall  be  equal  and  uniform  throughout  the  state,  and 
all  property  shall  be  taxed  according  to  its  value,  to  be 
ascertained  as  directed  by  law."  This  requires  the  same 
rate  on  all  property.  This  is  the  just  rule  of  equal  and 
uniform  taxation,  and  where  uniformity  is  required,  a 
departure  from  it  renders  the  tax  void,  it  being  a  denial 
of  equality  before  the  law  of  public  burdens.88  Where 
there  is  no  such  restriction  m  state  constitutions,  the  leg- 
islature is  not  bound  by  this  uniformity  doctrine;  it  can 
tax  one  kind  of  property  at  one  rate,  another  at  another 
rate,  or  select  particular  subjects  only  for  taxation.  But 

ss  Henderson  Bridge  Co.  v.  City,  173  U.  S.  592,  19  Sup.  Ct.  553. 

se  Ward  v.  Maryland,  12  Wall.  418;  Crandall  v.  Nevada,  6  Wall. 
35. 

87  Bridge  Company  v.  County,  41  W.  Va.  658 ;  Cooley,  Con.  Lim. 
514;  Note  3  Am.  &  Eng.  Corp.  Cas.  469;  Reyman  Co.  v.  Brister, 
179  U.  S.  445,  21  Sup.  Ct.  201. 

ss  New  Orleans  v.  Kaufman,  29  La.  Ann.  283 ;  Zanesville  v.  Rich- 
ards, 5  Ohio  St.  589;  3  Am.  &  Eng.  Corp.  Cas.  469,  note. 


THE     FOURTEENTH     AMENDMENT.  353 

we  must  remember  that  even  where  there  is  a  requirement 
of  equal  and  imifrom  taxation  according  to  value  of  prop- 
erty, it  does  not  apply  to  licenses  or  permits  to  carry  on 
callings.  One  of  these  may  be  taxed  one  price,  another, 
another;  one  town  may  tax  the  same  calling  one  price, 
another  town  another  price.89 

Telegraph,  Telephone  and  Express  Companies. — A  statute 
providing  that  taxable  value  of  the  property  of  tele- 
graph, telephone  and  express  companies  shall  be  deter- 
mined with  reference  to  the  value  of  the  entire  capital 
does  not  deny  the  companies  the  equal  protection  of  the 
law,  nor  is  it  open  to  the  objection  that  such  taxation  is 
upon  property  out  of  a  state.90 

An  act  giving  a  bank  right  to  elect  to  collect  from 
stockholders  and  pay  a  state  tax  of  eight  mills  on  the  dol- 
lar par  value,  instead  of  four  mills  on  the  dollar  actual 
value,  does  not  deny  equal  protection  of  the  law.91 

Taxation  Exemption. — It  is  the  unquestionable  power 
of  a  state  to  classify  property  and  callings  for  taxation, 
and  this  carries  along  with  it  the  power  to  exempt  what  it 
chooses.92  But  here  again  we  must  look  to  see,  so  far 
as  state  law  is  concerned,  whether  there  is  a  provision  like 
that  in  the  West  Virginia  constitution  quoted  above,  re- 

89  Slaughter  v.  Com.  13  Grat.  767  and  citations  in  3  Am.  &  Eng. 
Corp.  Cas.  468;  Cooley,  Con.  Lim.  496;  Phenix  Co.  v.  State,  72 
Am.  St.  R.  143. 

»o  Sandford  v.  Poe,  37  U.  S.  App.  378 ;  Adams  Express  v.  Ohio, 
165  U.  S.  194. 

»i  Merchants'  Bank  v.  Commonwealth,  167  U.  S.  461. 

92  Rice  v.  Railroad,  1  Black  358;  Charles  Bridge  v.  Warren,  etc. 
11  Pet.  420;  Providence  Bank  v.  Billings,  4  Pet.  514;  Jefferson 
Bank  v.  Skelly.  1  Black  436;  Town  of  Danville  v.  Shelton,  76  Va. 
325:  3  Am.  &  Eng.  Corp.  Cas.  458;  18  Am.  &  Eng.  Corp.  Cas.  25, 
469;  Cooley,  Con.  Lim.  514:  Williamson  v.  Massey,  33  Grat.  237. 


354  RIGHTS    AND    PRIVILEGES    UNDER 

quiring  uniformity  of  taxation  and  all  property  to  be 
taxed;  for  if  there  is,  none  can  be  exempted,  as  shown 
by  the  able  opinion  of  Judge  Johnson  in  the  case  of  Ches- 
apeake &  Ohio  K.  E.  Co.  v.  Miller,  Auditor.9^ 

The  exemption  must  be  clearly  expressed.  Every  pre- 
sumption is  against  it.94 

A  municipal  corporation  can  make  no  exemption  from 
taxation  of  property  which  is  made  taxable  by  it  by  state 
law,  as  the  municipal  corporation  can  only  do  those  things 
which  state  law  allows,  and  can  not  do  things  forbidden 
by  such  law.95 

Delegation  of  Taxing  Power. — A  state  legislature  may 
delegate  to  municipal  corporations,  counties,  school  dis- 
tricts, townships  and  other  subordinate  agencies  the  pow- 
er of  taxation  consistently  with  due  process  and  the  equal- 
ity clause  of  the  Fourteenth  Amendment.96 

Irregular  Taxation  can  be  cured  by  act  operating  retro- 
spectively. The  legislature  could  have  authorized  the  tax- 
ation in  such  mode  in  advance,  and  hence  can  cure  it 
by  retrospective  act.97 

Municipal  Taxation. — The  grant  of  power  to  a  munici- 
pality is  not  a  contract  conferring  a  vested  right  on  the 

»s  19  W.  Va.  408. 

94  Railway  v.  Lafton,  96  U.  S.  564;  Erie  Company  v.  Pa.  21  Wall. 
498;   People  v.  City,   18  Am.  &  Eng.  Corp.   Cas.   28;    Lancaster  v. 
Clayton,  18  Am.  &  Eng.  Corp.  Cas.  31  and  full  n.  35. 

95  Whiting  v.  West  Point  (Va.),  38  Am.  &  Eng.  Corp.  Cas.  206. 
98 Martin  v.  School  District  (S.  C.),  35  S.  E.  517;  State  v.  Smith, 

18  Am.  &  Eng.  Corp.  Cas.  36;  City  of  Richmond  v.  Richmond  &  D. 
Co.  21  Grat.  604. 

97  Thompson  v.  Lee  Co.  3  Wall.  327 :  Astor  v.  New  York,  62  N.  Y. 
580;  Butler  v.  Toledo,  5  Ohio  St.  225. 


THE    FOURTEENTH     AMENDMENT.  355 

municipality,  and  the  legislature  may  withdraw  or  modify 
the  power  as  it  chooses.08 

This  doctrine  results  from  the  principle  that  state  power 
over  municipal  corporations  and  other  subdivisions  of 
its  territory  is  well-nigh  unlimited,  unless  the  constitu- 
tion of  the  state  restrains  the  legislative  powers.  There- 
fore, the  legislature  can  make  them,  amend  them,  unmake 
or  dissolve  them ;  it  can  validate  their  void  contracts,  and 
thus  put  burdens  011  them  which  but  for  such  legislation 
they  would  be  free  from."  Under  this  principle  such  mu- 
nicipal corporations  can  not  say  that  they  are  deprived 
of  property  without  due  process,  or  denied  the  equal 
protection  of  the  law,  contrary  to  the  Fourteenth  Amend- 
ment. But  we  must  look  to  the  state  constitution;  for  it 
may  give  rights  to  these  municipal  corporations,  may  give 
them  existence  and  attributes,  which  the  legislature  can 
not  destroy. 

Habitual  Criminals — Heavier  Punishment. — Statutes  im- 
posing heavier  punishment  upon  convicts  upon  second  con- 
viction of  crime  are  neither  ex  post  facto  nor  do  they 
deny  the  equal  protection  of  the  laws,  as  they  are  reason- 
able classifications  of  people  for  governmental  administra- 
tion, and  operate  on  all  alike  so  situated.100 

Preferred  Liens. — A  Virginia  statute,  giving  a  lien  to 
persons  furnishing  supplies  to  transportation,  mining  and 
manufacturing  companies,  in  preference  to  other  liens, 

»8  Williamson  v.  State,  130  U.  S.  189;  32  Am.  &  Corp.  Cas.  663; 
City  of  Richmond  v.  Richmond  &  D.  Co.  21  Grat.  604. 

»9  Williamson  v.  Eggleson,  170  U.  S.  304;  Kelly  v.  Pittsburg,  104 
U.  S.  78,  81;  Steele  Co.  v.  Erskine  (C.  C.  A.),  98  Fed.  215. 

100  McDonald  v.  Commonwealth,  173  Mass.  322;  Moore  v.  Mis- 
souri, 159  U.  S.  673. 


356  RIGHTS    AND    PRIVILEGES    UNDER 

was  assaulted  as  contrary  to  the  Fourteenth  Amend- 
ment, as  special  cla^s  legislation;  but  the  act  was  held 
valid.101  The  court  said  that  the  act  was  special  legis- 
lation, but  applied  to  all  in  like  condition,  and  was  justi- 
fiable under  the  police  power. 

Payment  in  Advance  for  Labor. — A  South  Carolina  act 
made  it  a  misdemeanor  to  receive  pay  or  supplies  for 
labor  on  farms  in  advance,  and  then  fail  to  perform 
such  labor.  The  act  was  held  not  discriminative  and  un- 
equal, but  valid.102  But  an  act  in  the  same  state  made  it 
an  indictable  offense  for  either  party  to  violate  a  con- 
tract between  the  land-holder  and  employee  for  labor;  it 
fixed  a  punishment  for  the  land-holder,  but  contained  no 
fixed  punishment  for  the  laborer.  This  act  was  held  un- 
constitutional for  such  discrimination.1  °-a 

Separate  Cars  for  Colored  Persons We  have  elsewhere 

seen  that  state  law  requiring  separate  cars  for  colored 
persons  does  not  violate  the  Fourteenth  Amend- 
ment as  against  the  colored  people.  But  does  it  as  against 
the  railroad  companies  ?  Does  it  deny  them  equal  pro- 
tection of  the  law?  It  has  been  held  that  it  does  not.104 

Women  Jurors. — Does  the  exclusion  of  women  from 
juries  violate  the  equality  clause  of  the  Fourteenth 
Amendment?  We  have  seen,  in  referring  to  the  case  of 
Strauder  v.  West  Virginia,105  how  vital  the  Supreme 
Court  of  the  United  States  has  considered  the  right  of  the 
citizen  to  sit  upon  juries.  State  law  excluding  colored 

101  Virginia  Devel.  Co.  v.  Croz.  I.  Co.  90  Va.  126. 
instate  v.  Chapman,  34  S.  E.  061. 
los  State  v.  Williams.  10  S.  E.  876. 

104  Chesapeake  &  Ohio  R.  Co.  v.  Com.  (Ky.),  51  S.  W.  R.  160,  179 
U.  S.  388. 

105  See  page   326    (of  this  book). 


THt)     JfVUKTtiJmTH     AMENDMENT.  357 

persons  from  jury  service  was  held  to  violate  the  Four- 
teenth Amendment106  It  rendered  a  conviction  of  mur- 
der void.  Is  a  verdict  against  a  woman  void  because  of 
the  state  law  excluding  women  from  juries  ?  At  common 
law  women  had  no  right  to  sit  on  juries,  and  juries  did  not 
include  them,  except  upon  a  writ  de  inspiciendo  ventre, 
a  jury  to  test  pregnancy.107  Their  exclusion  does  not  vio- 
late Amendment  Fourteen  on  a  trial  of  a  man,  but  it  was 
not  decided  as  to  a  trial  of  a  woman. 

Emigrant  Agents'  Tax. — An  act  taxing  emigrant  agents 
is  not  a  violation  of  the  privileges  and  immunities  of  a 
citizen  of  the  United  States  under  the  Fourteenth  Amend- 
ment, nor  does  it  deny  them  the  equal  protection  of  the 
laws.108 

Time  for  Appeal  from  Railroad  Board. — An.  act  fixing 
time  for  appeal  in  proceedings  arising  under  "the  pro- 
visions of  this  act,"  an  act  regulating  powers  of  a  board 
of  control  over  railroads,  was  held  not  to  be  in  violation 
of  the  Fourteenth  Amendment,  providing  for  equal  pro- 
tection of  the  laws.109 

Peddlers  Without  License. — An  act  prescribing  a  penalty 
for  peddling  without  license,  specifying  some  articles 
which  might  be  peddled  without  license,  was  held  not  to 
violate  the  Fourteenth  Amendment,  as  the  act  did  not 
discriminate  between  citizens,  but  left  all  alike  selling 
those  things,  the  act  only  discriminating  under  the  taxing 
power  as  to  the  things  reqiiiring  license. 

ioe  Strauder  v.  W.  Va.  100  U.  S.  303. 
io7McKinney  v.  State,  3  Wyoming,  719. 

108  Williams  v.  Fears,  35  S.  E.  699,  179  U.  S.  270,  21  Sup.  Ct.  129. 

109  State  v.  Jacksonville  Terminal,  27   So.  R.  221. 


358  RIGHTS    AND    PRIVILEGES    UNDER 

Livery-Stables  in  Cities. — An  ordinance  of  a  city  allow- 
ing four  livery-stables  in  the  business  center  of  a  city, 
while  the  fifth  and  all  others  thereafter  established  should 
be  relegated  and  confined  to  a  locality  remote  from  such 
center,  was  held  void  as  unjustly  discriminating  between 
livery-stable  keepers.110 

Prostitutes. — A  city  ordinance  prescribing  limits  for 
their  residence  not  contrary  to  Amendment  as  to  prop- 
erty-owners in  such  limits,  likely  not  as  to  prostitutes.111 
i 

EXCLUSIVE  CHARTERS,  GRANTS,  CONTRACTS. 

This  subject  deserves  fuller  consideration  than  has  been 
given  it  on  pages  136,  13Y.  As  there  stated,  on  numerous 
authorities  there  given,  there  is  no  question,  under  many 
decisions,  that  an  exclusive  charter,  grant  or  contract  to 
carry  on  a  lawful  business,  containing  provisions  for  ex- 
clusive privileges  of  value  to  the  grantee,  where  such  ex- 
clusive grant  or  privilege  is  contained  in  the  charter, 
grant  or  contract,  so  as  to  be,  when  accepted  and  acted 
upon  by  the  grantee,  considered  a  contract,  an  essential 
part  of  the  transaction  moving  the  grantee  to  accept  it  and 
invest  his  money  on  its  faith,  is  protected  as  a  contract 
by  the  federal  constitution,  Art.  1,  Sec.  X,  and  being  a 
valuable  franchise  or  privilege,  increased  in  value  by  the 
exclusive  right,  it  is  vested  property  protected  by  the 
Fourteenth  Amendment.  I  apprehend  there  could  be  no 
question  of  its  being  property,  both  from  its  nature  and 
because  rights  under  a  contract  are  property.  The  Cir- 
cuit Court  of  Appeals  held  it  property  under  the  pro- 

110  Town  v.  West,  27  So.  R.  53,  52  La.  Ann.  526. 

in  L'Hote  v.  New  Orleans,  177  U.  S.  587,  20  Sup.  Ct.  788. 


THL1    FOURTEENTH     AMENDMENT.  359 

tection  of  the  Fourteenth  Amendment  in  Pike's  Peak 
Power  Company  v.  City  of  Colorado  Springs.111  Fran- 
chises have  always  been  regarded  as  property.  Such  ex- 
clusive charter  is  denominated  as  property  in  The  Bing- 
hamton  Bridge,112  where  the  court  said:  "The  consti- 
tutional right  of  one  legislature  to  grant  corporate  privi- 
leges and  franchises,  so  as  to  bind  and  conclude  a  suc- 
ceeding one,  has  been  denied.  W'e  have  supposed  that  if 
anything  was  settled  by  an  unbroken  course  of  decisions 
in  federal  and  state  courts,  it  was  that  an  act  of  incorpo- 
ration was  a  contract  between  the  state  and  stockholders. 
All  courts  are  estopped  at  this  day  from  questioning  the 
doctrine.  The  security  of  property  rests  upon  it,  and 
every  successful  enterprise  is  undertaken  in  the  unshaken 
belief  that  it  will  never  be  forsaken."  It  was  held  that  an 
act  giving  a  charter  to  build  a  toll  bridge,  with  a  clause 
that  it  should  be  unlawful  for  anyone  else  to  erect  one 
within  two  miles,  was  a  contract  inviolable  by  the  state, 
though  it  did  not  fix  a  limit  for  the  duration  of  the  charter. 
This  doctrine  was  first  settled  in  the  great  case  cited  so 
often  and  through  so  many  years — the  Dartmouth  College 
Case.113  In  New  Orleans  Gas  Company  v.  Louisiana 
Light  Company114  this  doctrine  is  held  with  continued 
emphasis  in  the  decision  that  a  legislative  grant  of  ex- 
clusive right  to  supply  gas  to  a  city,  the  right  being  in- 
corporated in  the  grant  on  the  consideration  of  the  com- 

111 105  Fed.  1. 

112  3  Wall.  51,  73.     So  in  Pearsall  v.  Great  N.  Co.,  161  U.  S.  661. 
us  4  Wheat.  518. 

114  115  U.  S.  650.    So  New  Orleans  Water  Works  v.  Rivers,  115  U. 
S.  674. 


360  RIGHTS    AXD    PRIVILEGES    UKDER 

pany  erecting  the  works,  is,  after  perfomance,  a  contract 
protected  by  the  Constitution  in  that  clause  inhibiting  a 
state  from  making  any  law  impairing  the  obligation  of  a 
contract.  In  numberless  cases  this  principle  of  the  Dart- 
mouth College  Case,  that  a  charter  is  a  contract  between  a 
state  and  the  corporation,  which  the  state  can  not  im- 
pair, has  been  recognized.  In  Stone  v.  Mississippi115 
it  is  said  to  have  become  so  imbedded  in  the  jurisprudence 
of  the  United  States  as  to  make  it  to  all  intents  and  pur- 
poses a  part  of  the  Constitution  itself.  In  another  case,110 
the  doctrine  is  called  "a  canon  of  American  jurispru- 
dence." Instances  of  exclusive  grants  protected  are 
many.117  The  Slaughter-House  Cases118  hold  such  char- 
ters not  repugnant  to  the  Amendment.  The  Dartmouth 
College  Case,  thus  immovably  established,  has  been  doubt- 
ed as  to  the  correctness  of  its  principle  as  an  original 
question,  and  very  much  lamented,  and  properly  so.  It 
chains  the  power  of  the  states,  and  deprives  them  of  ca- 
pacity to  legislate  for  the  good  of  their  people  as  chang- 
ing times  and  conditions  may  demand.  Charters  of  ex- 
clusive privilege  were  given  in  the  early  days  of  the 
country,  when  internal  improvement  was  limited,  and  the 
people  poor,  in  the  great  desire  to  promote  the  develop- 
ment of  the  country,  which  charters  in  later  days  are 
found  to  be  disastrous  to  the  public  weal,  which  should 

us  101  U.  S.  814. 

us  Pearsall  v.  Great  N.  Co.,  161  U.  S.  660. 

ii7Covington  Bridge  Co.  v.  Kentucky,  154  U.  S.  204;  St.  Tam- 
many Water  Co.  v.  N.  O.  Water  Works,  120  U.  S.  64 ;  Walla  Walla 
City  v.  Walla  Walla  Water  Co.,  172  U.  S.  1:  Crenshaw  v.  Slate 
River  Co.,  6  Rand.  215;  Los  Angeles  v.  Los  Angeles  Co.,  177  U.  S. 
558. 

us  16  Wall.  36. 


TH&    FOURTEENTH     AMENDMENT.  361 

always  be  paramount  to  mere  individual  or  private  in- 
terests. These  exclusive  privileges  foster  great  corpora- 
tions of  monopoly.  Even  a  patent  right  is  a  monopoly, 
in  many  respects  hurtful;  but  that  is  legitimated  by  the 
national  Constitution,  Art.  1,  §8,  clause  8,  to  promote 
science  and  useful  arts.  Considerations  such  as  those 
just  indicated  led  the  courts  to  restrain  these  exclusive 
charters  or  grants  within  the  narrowest  possible  limits 
consistent  with  reason,  and  the  courts  have  been  alert  and 
astute  to  find  exceptions  to  the  doctrine  of  the  Dartmouth 
College  Case.  To  warrant  the  application  of  the  rule 
that  an  exclusive  charter  is  a  protected  contract  and  prop- 
erty, there  must  be  a  contract  deducible  from  the  statute 
or  ordinance  claimed  to  give  the  exclusive  right.  In 
Stone  v.  Mississippi119  Chief -Justice  Waite,  after  ad- 
mitting the  authority  of  the  Dartmouth  College  Case, 
said :  "In  this  connection,  however,  it  is  to  be  kept  in  mind 
that  it  is  not  the  charter  that  is  protected,  but  only  any 
contract  the  charter  may  contain.  If  there  is  no  contract, 
there  is  nothing  in  the  grant  on  which  the  Constitution 
can  act.  Consequently,  the  first  inquiry  in  this  class  of 
cases  always  is,  whether  a  contract  has  in  fact  been  en- 
tered into,  and  if  so,  what  its  obligations."  We  may 
say,  virtually,  that  the  very  letter  of  the  act  must  breed 
this  contract,  else  the  courts  will  deny  it.  Take  the  case 
of  Stein  v.  Bienville  Water  Company120  holding  a  con- 
tract with  the  City  of  Mobile,  granting  the  solo  privilege 
of  supplying  the  city  with  water  for  a  term  of  years 

us  101  U.  S.  814.     So  New  Orleans  v.  N.  O.  Water  Co.,  142  U.  S. 
79. 

120  141  U.  S.  67. 


362  RIGHTS    AND    PRIVILEGES    UNDER 

from  a  certain  creek,  not  impaired  by  a  contract  with, 
another  company  to  supply  the  city  with  water  from  a 
different  source.  A  very  strict  construction.  We  might 
think  the  first  contract  meant  an  exclusive  right  to  supply 
the  city  with  water,  not  to  be  infringed  by  a  right  granted 
to  another  company  to  bring  it  from  another  source.  The 
case  shows  a  leaning  against  monopoly.  It  distinguishes 
that  case  from  the  St.  Tammany  Case,121  which  was  a 
grant  to  supply  water  from  any  source. 

It  will  not  do  for  a  corporation  or  person  claiming  this 
sole  right  to  cite  the  general  law  of  a  state  in  force  at  the 
time  of  the  grant  giving  in  some  way  exclusive  right,  as 
for  instance,  that  no  ferry  or  bridge  right  should  be  grant- 
ed within  a  certain  distance  of  another  toll  ferry  or  bridge. 
In  a  general  act  of  Virginia  was  a  provision  that  no  ferry 
should  be  granted  within  a  half  mile  of  another,  and  it 
was  held  that  this  was  general  legislation,  subject  to 
repeal,  and  did  not  tie  the  hands  of  the  state  from  grant- 
ing another  ferry  right  within  that  distance.  There  was 
no  contract.122  Another  case123  holds  precisely  similar 
doctrine.  In  Salt  Company  v.  East  Saginaw124  it  was 
held  that  an  act  giving  a  bounty  on  salt  manufactured  in 
Michigan,  and  exempting  property  used  in  its  production 
from  taxation,  made  no  contract,  and  that  the  act  was  only 
a  general  law  liable  to  repeal  at  any  time. 

And  here  we  must,  in  every  case,  remember  a  domi- 
nant rule,  laid  down  in  several  cases,  but  emphatically  in 

121  120  U.  S.  64. 

122  Williams  v.  Wingo,  177  U.  S.  601. 

123  Belmont  Bridge  v.  Wheeling,  138  U.  S.  287. 
"4  13  Wall.  373. 


THE    FOURTEENTH     AMENDMENT.  863 

Pearsall  v.  Great  Northern  Company:125  "Such  limita- 
tions upon  the  power  of  the  legislature  must  be  construed 
in  subservience  to  the  general  rule  that  grants  by  the  state 
are  to  be  construed  strictly  against  the  grantees,  and  that 
nothing  will  be  presumed  to  pass  except  it  be  expressed  in  f 
clear  and  unambiguous  language.  As  was  said  by  Mr. 
Justice  Swayne  in  Fertilizing  Company  v.  Hyde  Park, 
97  U.  S.  659,  666,  The  rule  of  construction  in  this  class 
of  cases  is  that  it  shall  be  most  strongly  against  the  cor- 
poration. Every  reasonable  doubt  must  be  resolved  ad- 
versely. Nothing  is  to  be  taken  as  conceded  but  what  is 
given  in  unmistakable  terms,  or  by  implication  equally 
clear.  The  affirmative  must  be  shown.  Silence  is  nega- 
tion, and  doubt  is  fatal  to  the  claim.  This  doctrine  is 
vital  to  the  public  welfare.  It  is  axiomatic  in  the  juris- 
prudence of  this  court.'  Hence,  an  exclusive  right  to 
enjoy  a  franchise  is  never  presumed,  and  unless  the  char- 
ter contains  words  of  exclusion,  it  is  no  impairment  of 
the  grant  to  permit  another  to  do  the  same  thing,  although 
the  value  of  the  franchise  to  the  first  grantee  may  be 
wholly  destroyed."  I  refer  to  the  opinion  of  Justice 
Brown  in  that  case  as  valuable  in  presenting  the  rule  and 
its  limitations  as  stated  in  numerous  cases  cited  by  him, 
and  instances,  which  it  would  be  out  of  place  to  elab- 
orate here,  as  I  seek  only  in  this  work,  as  its  general  ob- 
ject, to  state  main  principles  pertinent  to  the  Fourteenth 
Amendment.  In  Central  Railroad  v.  Wright126  is  a  later 

125  161  U.  S.  647.     See  Xewton  v.  Commissioners,  100  U.  S.  548 ; 
Louisville  v.  Bank,  174  U.  S.  439;  Hamilton  Gas  Co.  v.  Hamilton, 
146  U.  S.  258. 

126  164  U.  S.  327. 


364  RIGHTS    AND    PRIVILEGES    UNDER 

announcement  of  the  same  rule.  The  case  of  Ford  v. 
Delta,  etc.  Company127  contains  a  lucid  presentation  of 
the  subject,  and  evinces  a  trend  against  such  exclusive 
privileges  in  holding  to  the  rule  of  the  most  strict  con- 
struction of  the  provision  of  privilege  or  exemption.  It 
further  holds  the  important  doctrine  that  an  exemption 
from  taxation  of  railroad  property  applies,  not  to  all  that 
the  company  may  own,  but  only  to  that  used  in  its  corpor- 
ate business ;  and  further  that  such  exemption  clause  does 
not  relieve  from  assessments  for  local  improvements. 

MUNICIPALITY  CONTRACT  OR  GRANT. 

There  can  be  no  question  of  the  power  of  a  munici- 
pal corporation  to  make  an  exclusive  grant  carrying  with 
it  the  same  immunity  from  harmful  invasion  as  a  grant 
direct  from  the  legislature.128  But  the  same  rule  that  it 
must  be  expressed  in  the  grant,  as  has  just  been  stated  as 
to  legislative  grants,  here  applies.  And,  further,  such 
municipal  grant  is.  void,  and  is  neither  contract  nor  prop- 
erty protected  by  the  federal  Constitution,  unless  the 
municipality  had  the  power  by  law  to  make  the  grant.129 

Reservation  of  right  to  alter  or  repeal  charter. — So  hurt- 
ful became,  in  process  of  time,  the  rule  of  the  Dartmouth 
College  Case  that,  following  the  suggestion  of  Justice 
Story  made  in  it,  the  states  frequently  adopted  the  course 
of  inserting  in  charters  granted  by  them  a  clause  reserving 

127  164  U.  S.  662;  Shelby  Co.  v.  Union  Bank,  161  U.  S.  149. 

128  Pike's  Peak  Power  Co.  v.  City  of  Colorado  Springs,  105  Fed.  1. 

129  Walla  Walla  City  v.  Walla  Walla  Water  Co.,   172  U.  S.   1; 
Clarksburg  Electric  Co.  v.  City  of  Clarksburg,  47  W.  Va.  — ;  35  S. 
E.  994;  New  Orleans  v.  N.  O.  Water  Co.,  142  U.  S.  79;  Hamilton 
Gas  Co.  v.  Hamilton,  146  U.  S.  258. 


TUB    FOURTEENTH     AMENDMENT.  305 

right  to  alter  or  repeal  the  charter,  or  sometimes  incorpo- 
rated in  their  constitutions  or  general  corporation  statutes 
such  reservation.  In  such  cases  the  exclusive  grant  con- 
fers no  contract  right  or  vested  property  right  that  is 
beyond  alteration  or  repeal,  and  the  federal  Constitution 
would  not  be  violated  by  repeal  or  alteration.  Such  res- 
ervations, being  protective  and  conservative  of  public  right, 
are  construed  liberally  in  favor  of  the  state.130 

Repeal  without  reservation  in  charter. — Though  when  an 
exclusive  charter  or  grant  has  been  accepted  and  the  ex- 
penditure involved  in  it  made,  it  is  a  contract  and  prop- 
erty protected  by  the  Fourteenth  Amendment,  as  well  as 
by  article  1,  section  10,  of  the  Constitution,  nevertheless 
until  such  performance  of  the  work  of  the  charter,  until 
some  expenditure  has  been  made  upon  its  faith,  the  charter 
or  grant  may  be  repealed  or  altered,  since  until  then  there 
is  no  completed  contract  or  vested  property.  It  seems  that 
mere  acceptance  will  not,  in  such  case,  do.131 

Public  corporations. — The  law  above  stated  as  to  exclu- 
sive grants  to  private  corporations  or  individuals  has  no 
application  to  public  corporations  instituted  as  agencies 
of  the  state  in  the  exercise  of  government,  such  as  cities, 
towns,  counties  and  townships.  The  legislature  has  full 

iso  Citizens'  Bank  v.  Owensboro,  173  U.  S.  636 ;  Spring  Valley  Co. 
v.  Schottler,  110  U.  S.  347;  Railway  Company  v.  Philadelphia,  101 
U.  S.  528;  Holyoke  Co.  v.  Lyman,  15  Wall.  500;  Hamilton  Gas  Co. 
v.  Hamilton,  146  U.  S.  258;  Yeaton  v.  Bank,  21  Gratt.  593;  Louis- 
\.lie  v.  Bank,  174  U.  S.  439;  Looker  v.  Maynard,  179  U.  S.  46;  21 
Sup.  Ct.  21. 

131  Walla  Walla  City  v.  Walla  Walla  Water  Co.,  172  U.  S.  1; 
Bridge  v.  U.  S.,  105  U.  S.  470;  Pearaall  v.  Great  N.  Co.,  161  U.  S. 
(i4»i.  648;  Pike's  Peak  Power  Co.  v.  City  of  Colorado  Springs,  105 
Fed.  1. 


366  RIGHTS    AND    PRIVILEGES    UNDER 

power  over  them ;  their  rights  are  not  contract  or  property 
rights  protected  by  the  Constitution.132 

Eminent  Domain. — We  must  not  understand  that  these 
exclusive  grants,  charters  or  franchises  are  above  and  free 
from  the  power  of  the  state  under  the  right  of  eminent 
domain.  'No  property  right  is  violated  thereby  contrary 
to  the  Fourteenth  Amendment,  or  contrary  to  the  contract 
clause,  because  neither  impeaches  the  power  of  the  state 
existing  before ,  that  contract  clause  or  the  Fourteenth 
Amendment  existed.133 

Tax  exemption. — Akin  to  exclusive  charters  or  grants 
to  individuals  and  corporations  is  the  subject  of  such  char- 
ters or  grants  to  individuals  or  corporations  containing 
exemption  from  taxation.  Such  tax  exemption  clauses 
have  been  frequently  held  to  be  binding  on  the  states,  so  as 
to  forbid  them  from  withdrawing  or  modifying  the  exemp- 
tion. The  exemption  is  a  contract  protected  by  section 
10,  article  1,  of  the  federal  Constitution.  It  is  also  prop- 
erty protected  by  the  Fourteenth  Amendment,  because  in 
compelling  payment  of  taxes  without  law,  against  law, 
property  is  improperly  taken  and,  therefore,  taken  against 
the  due  process  clause.134  There  have  been  able  protests 
against  this  disastrous  doctrine  of  the  power  of  a  legis- 

132  Dartmouth   College  Case,  4  Wheat.   518 ;   Newton  v.   Commis- 
sioners, 100  U.  S. -549;  New  Orleans  v.  N.  O.  Water  Works,  142  U. 
S.  79,  89. 

133  West  River  Bridge  Co.  v.  Dix,  6  How.  507 ;  Monongahela  Co. 
v.  U.  S.,  148  U.  S.  312;  N.  O.  Gas  Co.  v.  Louisiana  Light  Co.,  115  U. 
S.  650,  673. 

134  Stearns  v.  Minnesota,  179  U.  S.  223,  21  Sup.  Ct.  73;  Pearsall 
v.  Great  N.  Co.,  161  U.  S.  646,  647;  Citizens'  Bank  v.  Owensboro,  173 
U.  S.  636;  Piqua  Branch  Bank  v.  Knoop,  16  How.  369;   Asylum  v. 
New  Orleans,  105  U.  S.  362;  Home  of  Friendless  v.  Rouse,  8  Wall. 
430;  Dodge  v.  Woolsey,  18  How.  331;   Illinois  C.  R.  Co.  v.  Adams, 
(Jan.   1901),  21   Sup.  Ct.  251. 


THE     FOURTEENTH     AMENDMENT.  367 

lature  to  exempt  from  taxation.  Even  before  the  Four- 
teenth Amendment  it  may  be  doubted  whether  a  state 
could  class-legislate  thus,  making  some  pay  taxes  and  ex- 
empting others,  and  relieving  large  taxable  values  of  pub- 
lic duty  and  burden ;  but  since  the  Amendment,  is  it  equal 
protection  of  the  law  ?  Is  it  consistent  with  the  equality- 
before-the-law  clause?  I  would  question  it,  as  an  orig- 
inal proposition;  but  before  the  Amendment  it  had  been 
decided  to  be  within  the  competency  of  the  legislature. 
The  exemption  practically  operates  to  favor  the  rich,  "to 
make  the  rich  richer,  the  poor  poorer" — a  special  privi- 
lege. Of  course,  it  is  not  without  force  to  say  that  people 
going  into  costly  enterprises  on  the  faith  of  such  exemp- 
tion seem  to  deserve  consideration ;  but  contrast  with  their 
rights  the  power,  which  every  government  ought  to  have, 
to  legislate  for  the  many  unhampered,  in  such  a  matter 
as  public  taxation,  by  regard  for  even  the  rights  of  the 
few.  The  lofty  maxim  of  the  Koman  law,  of  the  law  of 
the  civilized  world,  Salus  populi  suprema  lex  est,  could 
find  no  fitter  application  than  in  this  instance.  Govern- 
ment depends  upon  this  tax  power ;  it  can  not  live  without 
it.  Can  a  state  estop  itself  by  any  such  contract  of  ex- 
emption ?  It  is  conceded  that  it  can  not,  if  its  constitu- 
tion prohibits;  but  can  it  on  general  principles  do  ^o? 
The  courts  have  answered  this  question  in-  the  affirmative ; 
but  in  several  cases  Justices  Campbell,  Miller,  Chase  and 
Field  entered  vigorous  protests,  as  have  many  state 
judges.136 

n-  Piqua  Branch  Bank  v.  Knoop,  16  How.  369,  407;  University  v. 
Rouse,  8  Wall.  430,  443. 


368  RIGHTS    AND    PRIVILEGES    UNDER 

So  binding  are  these  exemptions  that  the  states  can  not 
change  or  modify  the  process  of  taxation  contrary  to  their 
provisions,  as  where  the  charter  allowed  a  tax  of  three 
percent  on  gross  earnings  in  full  of  all  tax  demands,  it 
was  held  that  taxation  could  not  be  put  on  the  value  of 
corporate  property.136 

We  must,  hoAvever,  remember  that  this  tax  exemption 
is  not  favored  by  the  courts ;  that  it  must  be  contained  in 
the  grant  in  its  letter,  or  by  inevitable  implication  there- 
from; that  every  presumption  is  against  it;  that  it  can 
not  arise  merely  because  a  work  is  done  while  a  general 
law  is  in  force  exempting  such  work  from  taxation,  but 
the  exemption  must  come  from  the  charter  or  grant,  so 
as  to  be  a  contract;  that  it  must  be  a  contract  before  it 
can  be  deemed  property  under  the  Fourteenth  Amend- 
ment. The  same  principles  here  apply  as  those  stated  a 
few  pages  back  as  to  exclusive  grants  or  charters.  And 
we  must  not  forget  that  such  tax  exemption  can  not  be 
upheld  if  forbidden  by  the  state  constitution.137 

To  make  such  tax  exemption  binding  there  must  be, 
as  just  stated,  a  complete  contract,  and  that  must  be  on 
consideration  of  performing  a  work  of  cost,  and  it  can 
not  rest  on  an  exemption  existing  merely  bene  placitum.138 

Right  to  repeal  tax  exemption — Just  as  in  case  of  ex- 
clusive grants  and  privileges  stated  above,  so  as  to  tax  ex- 
emptions, in  the  respect  that  if  the  exemption  is  coupled 
with  a  right  to  repeal  or  alter,  or  the  state  constitution  or 

136  Stearns  v.  Minnesota,  179  U.  S.  223,  21  Sup.  Ct.  73. 

137  Stearns  v.  Minnesota,   179  U.   S.  — ,  21   Sup.   Ct.   73;   Chesa- 
peake &  Ohio  Railway  Co.  v.  Miller,  19  W.  Va.  408. 

138  Rector   v.   Philadelphia,   24   How.    300;    Grand   Lodge   v.   New 
Orleans,  166  U.  S.  143,  146. 


THE    FOURTEENTH     AMENDMENT.  369 

a  general  statute  antedating  the  exemption  so  provides, 
the  legislature  in  ay  withdraw  or  modify  the  exemption.139 

Exemption  from  police  power — There  can  be  none.  No 
exclusive  charter  or  grant  by  a  legislature  or  municipality 
can  withdraw  anything  from  the  lawful  exercise  of  the 
police  power,  which  would  otherwise  be  subject  thereto; 
for  that  would  take  from  the  government  that  for  which 
it  alone  exists  and  is  supported  by  the  people — govern- 
mental power  for  law,  order,  safety  of  life,  limb  and 
property,  public  health  and  all  other  behests  of  man  in 
organized  society.140  (See  pp.  169,  172.) 

Exemption  from  change  of  rates  charged  by  railroads 
and  others.  This  is  treated  of  elsewhere  (181,  184),  but 
it  may  be  mentioned  here  as  another  exception  to  the  rule 
of  the  Dartmouth  College  Case  above  discussed,  which 
exception  is  that  there  can  be  no  exemption  in  a  railroad 
or  other  charter  granted  for  business  touching  the  public 
interest,  carried  on  for  the  general  public,  and  which  the 
public  must  patronize,  which  will  deprive  the  state  of 
power  to  regulate  the  rates  and  charges  for  such  business, 
since  it  concerns  the  police  power,  is  warranted  by  th*» 
police  power,  just  mentioned  as  an  exception  from  ex- 
clusive grants.141 

139  Louisville  Water  Co.  v.  Clark,  143  U.  S.  1 ;  Citizens'  Bank  v. 
Owensboro,  173  U.  S.  636;  Louisville  v.  Bank,  174  U.  S.  439;  Spring 
Valley  Co.  v.  Schottler,  110  U.  S.  347;  Railway  Co.  v.  Philadelphia, 
101  U.  S.  528;  Holyoke  Co.  v.  Lyman,  15  Wall.  500;  Hamilton  Gas 
Co.  v.  Hamilton,  146  U.  S.  258. 

1*0  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659 ;  Munn  v.  Illinois, 
94  U.  S.  113:  N.  O.  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650, 
f.72:  Beer  Co.  v.  Massachusetts,  97  U.  S.  25;  Stone  v.  Mississippi, 
101  U.  S.  814. 

ui  Munn  v.  Illinois,  94  U.  S.  113;  Railroad  Co.  v.  Transportation 
Co.,  25  W.  Va.  324. 


370  RIGHTS    AND    PRIVILEGES    UNDER 

Must  be  for  public  purpose. — Can  there  be  an  exclusive 
charter  or  an  exemption  from  taxation,  without  any  con- 
sideration of  answering  a  public  purpose,  but  simply  for 
private  business  not  subserving  public  ends?  Those  pub- 
lic ends  have  been  the  inspiring  motive  for  these  favors, 
and  it  is  supposed  that  they  must  be  present  in  such  cases. 
Such  would  be  the  fair  import  of  the  cases  above  cited, 
and  just  now  I  observe  that  other  cases  assert  as  essential 
to  justify  an  exclusive  grant  a  public  end  and  benefit.142 

Against  these  exclusive  charters  and  contracts  made  for 
long  terms  by  municipalities  giving  persons  or  corpora- 
tions sole  privileges  to  furnish  light,  gas,  water  and  the 
like,  and  also  against  tax  exemptions,  loud  protests  have 
been  made,  and  many  state  decisions  have  denied  their 
validity;  but  the  holding  of  the  United  States  Supreme 
Court  sustaining  them  is  paramount  and  controlling,  as 
these  grants  involve  rights  of  property  under  the  Four- 
teenth Amendment  and  rights  under  the  clause  of  the 
federal  Constitution  restraining  states  from  impairing 
the  obligation  of  contracts.  We  must,  therefore,  at  last 
look  to  the  Supreme  Court  cases,  its  many  cases,  for  the 
standard  and  test  of  their  validity.  As  a  res  Integra 
their  validity  is  open  to  serious  question,  especially  under 
the  development  of  later  days.  They  foster  monopoly, 
stifle  competition,  debar  persons  from  equal  liberty  in  the 
theatre  of  lawful  competition,  amass  wealth  in  a  few 
hands,  give  undue  power  over  production  and  sale,  and 
undue  influence  in  public  affairs  and  private  business. 

142  Slaughter  House  Cases,  16  Wall.  36 ;  N.  O.  Gas  Co.  v.  Louisi- 
ana Light  Co.,  115  U.  S.  650;  Louisville  Gas  Co.  v.  Citizen^'  Gas 
Co.,  115  U.  S.  683. 


TEE    FOURTEENTH     AMENDMENT.  371 

In  the  8 laughter-House  Cases  a  reason  for  their  validity 
is  stated  to  be  that  the  English  parliament  and  American 
legislatures  had  long  exercised  the  function  of  making 
such  grants  for  public  good;  but  it  seems  clear  that  all 
monopolies  were  condemned  by  the  common  law.  In 
1602  it  was  so  held  in  Darcy  v.  Allen.143  It  is  difficult 
to  see  how  contract  or  property  rights  can  vest  under  con- 
tracts banned  by  law.  In  the  time  of  Queen  Elizabeth 
these  monopolies  greatly  afflicted  England  until  declared 
repugnant  to  the  ancient  laws  of  the  realm,  as  Hume, 
Macaulay  and  Blackstone  tell  us.144  They  afflict  Amer- 
ica ;  but  the  trend  of  public  opinion,  and  the  limitations 
set  up  by  the  courts  and  legislation,  are  restrictive  of 
them,  and  probably  no  great  disaster  will  result  from 
them. 

TRUSTS  AND  COMBINATIONS. 

What  is  the  meaning  of  the  "trusts"  here  alluded  to? 
Xot  those  trusts  so  long  known  to  courts  of  equity,  where 
property  is  held  by  a  trustee  for  the  benefit  of  another 
person,  a  cestui  que  trust;  but  the  "trusts"  here  lef erred 
to  are  those  so  common  of  late  days,  so  much  the  subject 
of  adverse  and  favorable  opinion,  the  subject  of  discus- 
sion in  the  political  arena,  and  of  restrictive  or  prohib- 
itory legislation  by  the  national  and  state  legislatures. 
This  subject,  though  it  is  not  intended  to  minutely  con- 
sider it,  is  pertinent  to  this  work  for  the  reason  that  the 
question  is  whether  these  trusts  are  against  public  policy 
and  void  at  common  law;  for  if  they  are  not,  then  undue 

i«il  Coke,  84. 

««  4  Bl.  Comm.  159. 


372  RIGHTS    AND    PRIVILEGES    UNDER 

legislation  against  them  violates  the  liberty  clause  and  the 
property  clause  of  the  Fourteenth  Amendment  covering 
the  right  to  contract  and  engage  in  business ;  otherwise  it 
does  not.  The  stockholders  in  different  manufacturing 
corporations  adopted  a  plan  of  transferring  their  cer- 
tificates of  stock  to  persons  constituting  a  committee  of 
trustees,  and  these  trustees  issued  to  the  stockholders  cer- 
tificates of  interest — "trust  certificates."  The  trustees  got 
new  certificates  of  stock  from  the  several  corporations 
and  controlled  their  operations,  and  the  profits  went  to  the 
old  stockholders  under  their  stock  certificates.  Thus  these 
several  corporations  were  combined  under  one  ownership 
and  control,  and  no  longer  competed  with  each  other  in  the 
production  and  sale  of  commodities.  What  the  purpose 
of  this  arrangement?  Abatement  or  destruction  of  com- 
petition, limitation  of  production,  if  demand  declines  and 
prices  go  down,  maintenance  or  enhancement  of  prices  for 
articles  necessary  for  public  consumption;  in  short,  con- 
trol of  production  and  prices,  control  of  the  market  in 
given  lines,  and  either  the  destruction  of  outstanding  con- 
cerns or  their  compulsory  amalgamation  with  the  com- 
bination; and  sometimes  even  with  express  provision  to 
buy  in  the  stock  of  other  companies.  The  courts  declared 
such  combinations  partnerships,  and  hjeld  them  illegal, 
because  corporations  can  only  separately  carry  out  the 
functions  assigned  by  the  state,  and  can  not  merge  in  a 
partnership.145  The  subject,  so  far  as  it  is  repugnant  to 

1*5  People  v.  Sugar  Trust,  121  N.  Y.  582,  18  Am.  St.  R.  843 ;  State 
v.  Standard  Oil  Co.,  49  Ohio  St.  137,  34  Am.  St.  R.  541 ;  Mallory  v. 
Hanauer  Oil  Works,  86  Tenn.  598;  Bishop  v.  American  Preserve 
Co.,  157  111.  284,  48  Am.  St.  R.  317;  Distilling  Co.  v.  People,  156 
111.  448,  47  Am.  St.  R.  200:  National  Harrow  Co.  v.  Hench,  83  Fed. 
36,  39  L.  R.  A.  299. 


THE    FOURTEENTH     AMENDMENT.  373 

the  federal  anti-trust  law  to  protect  interstate  and  foreign 
commerce,  is  discussed  in  cases  cited  in  the  note.146 

In  some  of  the  cases  cited  the  courts  base  their  condem- 
nation of  trusts,  not  merely  on  the  perversion  of  charters 
by  engagement  in  partnership,  but  went  further,  widened 
out  the  basis  of  their  condemnation  by  declaring  the  com- 
binations to  be  contrary  to  public  policy,  because  tend- 
ing to  the  restraint  of  trade  and  competition  and  encour- 
agement of  monopoly,  and  undue  control  of  production 
and  prices,  and  forfeited  the  corporate  charter.  Later, 
to  avoid  the  partnership  objection,  another  process  was 
adpted  whereby  the  corporations  conveyed  their  plants  to 
trustees,  and  they  conveyed  to  a  newly  organized  corpor- 
ation, which  conducted  the  business  in  lieu  of  all  and  for 
the  benefit  of  their  stockholders,  or  the  several  corpora- 
tions transferred  in  some  way  to  the  new  corporation. 
In  some  way  several  corporations  competing  in  production 
merge  into  one,  and  cease  competitive  production.  By 
means  of  large  capital  this  new  corporation  can  produce 
largely,  or  limit  production,  lessen  supply,  enhance  prices, 
and  lower  the  prices  of  materials  used  in  production.  It 
may  be  at  once  said  that  no  matter  what  the  form  adopted 
may  be,  if  the  end  is  to  curtail  production,  enhance  prices, 
restrain  trade  and  competition,  control  the  market  in 
commodities,  it  is  condemned  by  common  law  and  by 
many  statutes  in  the  different  states.  The  common  law, 
for  the  avowed  purpose  of  encouraging  freedom  of  trade 
and  production,  disabled  any  corporation  from  buying 

"« United  States  v.  Freight  Association,  166  U.  S.  290;  United 
States  v.  Joint  Traffic  Association,  171  U.  S.  505;  Addyston  Pipe 
Co.  v.  United  States,  175  U.  S.  211. 


374  RIGHTS    AND    PRIVILEGES    UNDER 

out.  or  leasing  for  long  terms,  the  franchises  and  prop- 
erties of  other  corporations.  Its  design  was  to  keep  them 
all  going  for  the  public  good.  The  Supreme  Court  of  the 
United  States  held  that  a  railroad  corporation,  unless 
authorized  by  its  charter  or  legislative  act,  can  not  by 
lease  or  other  contract  turn  over  to  another  company  for 
a  long  period  of  time,  its  road  and  all  its  appurtenances, 
the  use  of  its  franchises  and  the  exercise  of  its  power,  nor 
can  any  other  railroad  company,  without  such  authority, 
make  a  contract  to  run  and  operate  the  road,  property  and 
franchises  of  another  railroad  company.147  Under  this 
law  such  combination  of  corporations  would  seem  to  be 
unlawful  and  their  charters  open  to  forfeiture  for  mis- 
user.  The  Chicago  Gas  Trust  Company  was  incorpo- 
rated to  purchase  and  hold  or  sell  the  capital  stock,  or  pur- 
chase or  lease,  or  operate  the  property,  plant,  good  will, 
rights  and  franchises  of  any  gas  works  or  company ;  but 
the  Supreme  Court  of  Illinois  held  the  incorporation  il- 
legal.148 Such  seems  to  be  the  general  law.149 

In  the  late  great  case  of  Harding  v.  American  Glucose 
Company150  it  is  held  that  "any  combination  of  compet- 
ing corporations,  the  necessary  consequence  of  which  is  the 
controlling  of  prices,  or  limiting  of  production,  or  sup- 
pressing competition,  in  such  a  way  as  to  create  monopoly, 
is  contrary  to  public  policy  and  void.  An  agreement  tend- 

1*7  Pennsylvania  Co.  v.  St.  Louis,  Alton,  etc.,  Railroad,  118  U.  S. 
290;  Thomas  v.  Railroad  Co.,  101  U.  S.  71. 

148  People  v.  Chicago  Gas  Trust  Co.,  130  111.  268. 

149  Stockton  v.  Central  R.  R.  Co.,  50  N.  J.  Eq.  52,  s.  c.  p.     489 ; 
Houck   v.   Anheuser-Busch  Association,  88   Tex.   184;    State  v.   Ne- 
braska Distill.  Co.,  29  Neb.  700. 

150182  111.  551,  74  Am.  St.  R.  189  (full  note.)  See  1  Eddy  on 
Combinations.  §000. 


TUB    FOURTEENTH     AMENDMENT.  375 

ing  to  prevent  competition  and  create  a  monopoly  is  void 
by  the  principles  of  the  common  law,  because  it  is  against 
public  policy."  The  case  declared  void  the  sale  of  the 
American  Glucose  Company  to  a  new  company,  the  Glu- 
cose Sugar  Refining  Company,  to  which  several  other 
corporations  sold  out,  and  the  entire  transaction  was  held 
void.  The  opinion  contains  an  elaborate  discussion  of  the 
trust  subject.  The  case  referred  to  applies  the  same  rule 
to  combinations  of  labor  to  affect  the  price  of  labor. 

Another  Illinois  case  151  held  void  an  agreement  between 
a  labor  or  trade  union  and  a  board  of  education  that  in 
all  contracts  for  public  works  no  labor  should  be  employed 
but  union  labor,  as  stifling  competition,  making  the  gov- 
ernment discriminate  between  citizens  in  public  works, 
and  contrary  to  the  guaranty  of  liberty  in  the  Constitu- 
tion. The  court  said  that  such  a  legislative  act  would  be 
void,  and  so  was  this  contract  by  a  public  board  represent- 
ing the  state.  A  later  case152  holds  a  city  ordinance  re- 
quiring city  printing  to  be  awarded  only  to  union  shops,  or 
those  showing  a  printers'  union  label,  void  as  promoting  mo- 
nopoly and  restricting  the  letting  to  the  lowest  bidder  for 
the  public  benefit.  A  similar  city  ordinance  as  that  last 
mentioned  was  held  ultra  vires  in  a  city  council,  and  as 
tending  to  promote  monopoly  and  prevent  competition.153 

The  By-laws  of  the  Associated  Press  Association  pro- 
vided that  the  members  of  it  should  not  receive  or  furnish 
the  regular  news  dispatches  of  any  other  news  association 

1"  Adams  v.  Brennan.   177  111.   194,  69  Am.  St.  R.  222,  224. 
152  Holden  v.  City  of  Alton,  179  111.  318. 
"a  City  of  Atlanta  v.  Stein,  111  Ga.  789. 


376  RIGHTS    AND    PRIVILEGES    UNDER 

covering  a  given  territory,  and  they  were  held  void.154 
The  opposite  decision  was  made  in  New  York.155 

There  are  many  honest  advocates  of  trusts  as  not  dele- 
terious to,  but  promotive  of,  the  public  interests.  Those 
advocates  claim  that  trusts  stimulate  enterprise  and  indus- 
try by  the  union  of  large  amounts  of  money,  under  safe 
management  in  active  development,  increasing  the  em- 
ployment of  labor  and  enabling  the  procurement  of  ma- 
chinery for  the  production  of  commodities  at  lower  cost, 
and  thus  lessen  the  price  to  consumers,  and  that  they  pre- 
vent ruinous  competition  involving  citizens  owning  stocks 
in  industrial  corporations  in  great  losses.  It  is  claimed 
that  trusts  are  unavoidable  in  these  days  of  immense 
production,  which  minor  capital  can  not  accomplish,  and 
that  they  are  indispensable  to  secure  to  the  nation  for- 
eign export  trade,  and  without  trusts  or  combinations  we 
could  not  cope  with  foreign  production.  There  is  no  doubt 
that  there  is  fact  in  these  arguments.  These  combinations 
do  injury  to  the  body  politic,  but  they  also  do  some  good. 
Whatever  we  may  think  in  that  regard,  so  far  as  such 
combinations  are  adverse  to  the  state,  the  courts  have  dis- 
regarded these  arguments  of  public  benefit.  In  the  case 
above  mentioned,  Harding  v.  Glucose  Company,  the  court 
said  the  reduction  of  prices  made  no  excuse,  as  it  might 
be  done  to  crush  out  small  concerns  and  thus  increase 
prices;  and  that  even  if  prices  were  not  raised,  the  true 
consideration  was  that  the  combination  enabled  the  cor- 
poration to  raise  them  at  its  will.  Whilst  the  courts  have 
looked  askance  on  trusts,  and  have  administered  heroic 

is*  Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438. 
issMathew  v.  Associated  Press,  136  N.  Y.  333. 


TUB    FOURTEENTH     AMENDMENT.  377 

treatment,  in  many  instances  causing  their  abandonment, 
they  have  properly  guarded  against  the  denial  of  the  right 
of  legitimate  contract  and  business,  or  the  injury  of  trade. 
The  legislatures  should  not  destroy  the  incentive  to  invest- 
ment in  legitimate  enterprise.  Legislation  so  radical  as 
to  repress  business  and  commerce  will  injure  the  public 
more  than  will  the  trusts.  Indeed  such  legislation  could 
not  stand  judicial  test;  still  it  would  harm  business  in- 
terests. The  combinations  must  injure  legitimate  trade, 
business  and  competition  to  fall  under  legitimate  con- 
demnation.156 The  conservative  mean  between  the  con- 
flicting interests  is  troublesome  to  attain  in  legislation  and 
decision ;  but  the  public  Interest  is  always  to  be  the  matter 
of  first  consideration.  In  Addyston  Pipe  Company  v. 
United  States,157  in  construing  the  Act  of  Congress  "to 
protect  trade  and  commerce  against  unlawful  restraints 
and  monopolies,"  the  court  laid  down  a  very  wholesome 
rule  of  general  application  to  both  inter-state  and  intra- 
state  commerce  in  the  language  that  where  "the  direct  and 
immediate  effect  of  a  contract  or  combination  among  par- 
ticular dealers  in  a  commodity  is  to  destroy  competition 
between  them  and  others,  so  that  the  parties  to  the  con- 
tract or  combination  may  obtain  increased  prices  for 
themselves,  such  contract  or  combination  amounts  to  a 
restraint  of  trade  in  the  commodity.  Total  suppression  of 
trade  in  the  commodity  is  not  necessary  to  render  the  com- 
bination one  in  restraint  of  trade.  It  is  the  effect  of  the 
combination  in  limiting  and  restricting  the  right  of  each 
of  the  members  to  transact  business  in  the  ordinary  way, 

««  Diamond  Match  Co.  v.  Rocber,  106  X.  Y.  473. 
"7175  U.  S.  211. 


378  RIGHTS    AND    PRIVILEGES    UNDER 

as  well  as  its  effect  upon  the  volume  of  dealing,  that  is  re- 
garded. All  the  facts  and  circumstances  are  to  be  con- 
sidered in  order  to  determine  the  fundamental  question — 
whether  the  necessary  effect  is  to  restrain  inter-state  com- 
merce." In  that  case,  when  in  the  Circuit  Court  of  Ap- 
peals, Judge  Taft  delivered  a  very  valuable  and  able 
opinion.158  The  nation  has  no  power  over  the  subject 
except  so  far  as  such  trusts  may  affect  inter-state  com- 
merce. The  case  just  mentioned  concedes  full  power  of 
the  states  over  trusts,  so  far  as  they  affect  their  internal 
commerce.  So  it  can  be  said  that,  regardless  of  benefits 
that  may  accrue  from  trusts,  as  the  court  said  as  to  inter- 
state commerce,  we  may  say  as  to  intra-state  commerce, 
when  the  question  of  the  lawfulness  of  a  combination 
arises,  that  if  its  logical,  natural,  probable  effect  is  to 
enhance  prices,  or  put  it  in  the  power  of  the  combination 
to  do  so,  or  to  suppress  competition,  or  prejudice  the  free- 
dom and  naturalness  of  trade,  that  combination  is  unlaw- 
ful. 

INCOME  TAX. 

What  has  the  Fourteenth  Amendment  to  do  with  this  ? 
If  it  is  an  unconstitutional  tax,  one  discriminating  be- 
tween citizens  without  constitutional  warrant,  its  impo- 
sition would  be  class  legislation  denying  equal  protection 
of  the  law,  taking  property  without  due  process.  Of 
course,  as  the  Fourteenth  Amendment  does  not  restrain 
the  powers  of  the  National  government,  but  only  those 
of  the  States,  it  can  have  no  bearing  on  federal  income 

15885  Fed.  271,  46  L.  R.  A.  122. 


THE     FOURTEENTH     AMENDMENT.  379 

tax.  But  is  it  a  lawful  state  tax  ?  It  is  popularly,  but 
mistakenly,  thought  that  the  United  States  Supreme 
Court  has  decided  against  the  validity  of  all  federal  in- 
come tax,  and  it  has  received  bitter  condemnation  because 
of  that  erroneous  understanding.  On  the  contrary,  that 
court  has  recognized  the  validity  of  such  tax  when  appor- 
tioned among  the  states  as  required  by  the  Constitution, 
article  1,  providing  that  "Xo  capitation  or  other  di- 
rect tax  shall  be  laid  unless  in  proportion  to  the  census," 
and  "Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  in  this 
Union,  according  to  their  respective  numbers."  Chief- 
Justice  Fuller  said  that  this  power  in  the  federal  govern- 
ment to  levy  an  income  tax  by  apportionment  among  the 
states  was  "plenary  and  absolute."  159  The  question  be- 
fore the  Supreme  Court  was  whether  the  act  of  Congress 
lewing  an  income  tax  directly  on  the  tax-payer  was  a 
direct  or  indirect  tax ;  for  if  direct,  such  levy  immediately 
on  the  tax-payer,  and  not  mediately  by  apportionment 
among  the  states,  would  violate  the  Constitution.  It 
was  held  that  taxes  on  real  estate,  being  indisputably 
direct  taxes,  so  were  taxes  on  its  incomes  from  rents,  and 
so  on  personal  property  or  its  income,  and  not  being  ap- 
portioned among  the  states  the  act  was  unconstitutional. 
The  court  held  that  the  power  to  lay  direct  taxes  was  with 
the  states  forming  the  Union,  and  that  they  had  given  up 
very  great  powers  of  taxation  to  the  general  government, 
such  as  excise  and  import  taxes,  but  had  reserved  the 
power  of  ^direct  taxation,  their  main  source  of  support,  and 

is*  Pollock  v.  Farmers'  L.  &  T.  Co.,  158  U.  S.  601. 


380  RIGHTS    AND    PRIVILEGES    UNDER 

had  only  given  the  nation  power  of  direct  taxation  quali- 
fiedly,  that  is,  by  apportionment  among  the  states.  Of 
course,  the  states  possess  the  power  of  direct  taxation.  We 
may  virtually  say  that  all  their  taxes  are  direct.  It 
is  a  sovereign  power  inherent  in  them  from  the  beginning, 
not  prohibited  to  them  by  the  federal  Constitution,  nor 
granted  to  the  nation  except  as  stated.  This  power  resided 
in  the  states  before  the  Fourteenth  Amendment  came.  It 
did  not  affect  the  power  of  taxation  in  the  states.  (See 
pages  149,298.  Even  though,  like  the  late  federal  act,  a 
man  of  an  income  of  $4,00  should  be  taxed  on  it,  and  one 
of  less  income  not  taxed,  still  this  would  not  bring  it  in  op- 
position to  the  Amendment  declaring  that  no  state  shall 
deny  the  equal  protection  of  the  law,  because  classification 
for  taxation  is  usual  and  lawful.  (See  pages  337,  341.) 


THE     FOURTEENTH     AMENDMENT.  381 


Chapter  17. 

KELATIONS  OF  STATES  AND  NATION. 
It  is  not  designed  or  necessary  to  be  full  or  ample  upon 
this  subject,  but  only  to  go  so  far  as  will  indicate  the  con- 
struction and  application  of  the  Fourteenth  Amendment 
as  pertinent  to  the  question  following: 

HOW  CAN  THE  UNITED  STATES  ENFOKCE 
THE  FOURTEENTH  AMENDMENT  ? 

That  the  Fourteenth  Amendment  greatly  increased  the 
power  of  the  nation  over  the  states  by  even  a  temperate 
construction  I  have  already  stated,  and  is  everywhere 
admitted.  Before  it  came  the  state  could  deal  with  the 
lives,  liberty  and  property  of  its  people  as  it  chose,  with- 
out restraint  or  interference  by  the  nation;  there  was  no 
power  in  the  nation  to  challenge  any  act  of  the  state  for 
want  of  due  process  or  equality,  unless  its  law  was  ex  post 
facto,  attainder,  or  impaired  a  contract;  but  under  this 
amendment  the  nation  may  challenge,  every  person 
through  national  instrumentalities  may  challenge,  any 
state  action  in  these  matters  as  being  without  due  proc- 
ess, or  denying  the  equal  protection  of  the  laws,  whether 
that  action  be  by  the  legislative,  executive  or  judicial 


382  RIGHTS    AND    PRIVILEGES    UNDER 

power,  if  that  action  impair  life,  liberty  or  property  with- 
out due  process,  or  deny  equal  protection  of  the  laws,  or 
is  alleged  to  do  so.  This  is  clear  from  the  words  of  the 
amendment.  But  how  can  the  nation  interfere,  that  is, 
by  what  means,  in  what  mode  ?  And  when  it  does  inter- 
fere, how  far  can  it  go  ?  Great  questions,  grave  questions, 
to  which  no  fixed  answer,  except  a  very  general  one,  can 
be  given ;  but  such  general  principles  can  be  stated,  have 
been  stated,  as  point  the  way.  Still,  there  is  confusion 
and  indefiniteness,  to  a  considerable  extent.  Upon  these 
questions  hang  the  fate  of  the  Union.  The  Union  can 
not  exist  without  the  states,  and  sometimes  the  states  are 
jealous  of  the  restriction  of  their  powers.  It  is  with  that 
great  tribunal  at  Washington  to  say  finally,  to  hold  the 
balance  adjusted  between  Nation  and  States,  as  so  far 
it  has  well  done. 

Let  us  see,  in  short  space,  what  were  the  relations  of 
States  and  Union  before  the  Amendment,  and  thence  in- 
fer what  change  was  likely  contemplated  by  the  Amend- 
ment. It  has  been  often  inaccurately  said  that  the  fed- 
eral government  is  one  of  limited  powers.  It  is  one  of 
enumerated  powers,  but  of  unlimited  authority  within  that 
enumeration.  Chief -Justice  Marshall  said  in  1819  :  "This 
government  is  acknowledged  by  all  to  be  one  of  enum- 
erated powers.  The  principle  that  it  can  exercise  only 
the  powers  granted  to  it,  would  seem  too  apparent  to  have 
required  to  be  enforced  by  all  those  arguments  which  its 
enlightened  friends,  while  it  was  depending  before  the  peo- 
ple, found  it  necessary  to  urge.  That  principle  is  now 
universally  recognized.  .  .  But  the  question  respecting 
the  extent  of  the  powers  granted  is  perpetually  arising. 


THK     FOURTEENTH     AMENDMENT.  383 

In  discussing  these  questions  the  conflicting  powers  of 
the  general  and  state  governments  must  be  brought  into 
view,  and  the  supremacy  of  their  respective  laws,  when  in 
opposition,  must  be  settled.  If  any  one  proposition  could 
command  the  universal  consent  of  mankind  we  might  ex- 
pect it  \yould  be  this:  that  the  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its  sphere 
of  action.  .  .  The  government  of  the  United  States, 
then,  though  limited  in  its  powers,  is  supreme;  and  its 
laws,  when  made  in  pursuance  of  the  Constitution,  form 
the  supreme  law  of  the  land,  'anything  in  the  consti- 
tution or  laws  of  any  state  to  the  contrary  notwithstand- 
ing.'"1 

Thus  it  has  enumerated  powers,  not  all  the  powers  of  a 
government;  but  within  those  enumerated  powers,  and 
such  implied  ones  as  are  essential  to  execute  those  enum- 
erated powers,  the  government  of  the  United  States  is  su- 
preme over  states  and  people.  Chief-Justice  Chase,  for 
the  whole  court,  said  in  Lane  Co.  v.  Oregon : 2  "Both 
the  states  and  the  United  States  existed  before  the  Consti- 
tution. The  people  thought  that  instrument  established 
a  more  perfect  union  by  substituting  a  national  govern- 
ment, acting  with  ample  power  directly  upon  the  citizens, 
instead  of  the  confederate  government,  which  acted  with 
powers  greatly  restricted  only  upon  the  states.  But  in 
many  articles  of  the  Constitution  the  necessary  existence 
of  the  states,  and  within  their  spheres  the  independent 
authority  of  the  states,  is  distinctly  recognized.  To  them 
nearly  the  whole  charge  of  interior  regulation  is  com- 

i  Mofullough   v.    Maryland,   4    Wheat.    316. 
27  Wall.  71,  76. 


384  RIGHTS    AND    PRIVILEGES    UNDER 

mittea  or  left;  to  them  and  to  the  people  all  powers  not 
expressly  delegated  to  the  national  government  are  re- 
served. The  general  condition  was  well  stated  by  Mr. 
Madison  in  the  Federalist  thus:  'The  federal  and  state 
government  are,  in  fact,  but  different  agents  and  trustees 
of  the  people,  constituted  with  different  powers  and  de- 
signated for  different  purposes.' ' 

"It  is  a  familiar  rule  of  construction  of  the  Constitu- 
tion of  the  Union  that  the  sovereign  powers  vested  in 
the  State  governments  remained  unaltered  and  unim- 
paired, except  so  far  as  they  were  granted  to  the  govern- 
ment of  the  United  States.  That  the  intention  of  the 
framers  of  the  Constitution  in  this  respect  might  not  be 
misunderstood,  this  rule  of  interpretation  is  expressly  de- 
clared in  the  tenth  article  of  amendments,  namely:  'The 
powers  not  delegated  to  the  United  States  are  reserved  to 
the  states,  respectively,  or  to  the  people.'  The  govern- 
ment of  the  United  States  can  claim  no  powers  which  are 
not  granted  to  it  by  the  Constitution,  and  the  powers 
actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication."3 

Thus  it  is  apparent,  and  no  one  denies,  that  it  was,  be- 
fore the  Fourteenth  Amendment,  a  function  of  the  state 
to  make  laws  and  administer  them,  civil  and  criminal, 
touching,  covering,  protecting,  forfeiting  life,  liberty  and 
property.  Does  the  amendment  change  all  this  ?  No  one 
has  ever  so  claimed.  Some  statements  of  law  quoted 
above  came  from  the  Supreme  Court  since  the  adoption 
of  the  Fourteenth  Amendment,  and  no  qualification  of 

•  The  Collector  v.  Day,  11  Wall.  124. 


THE    FOURTEENTH     AMENDMENT.  385 

antecedent  doctrine  in  this  regard  was  made.*  Volumes 
more  could  be  quoted  in  this  vein.  It  is  a  concessum. 
"The  Fourteenth  Amendment  was  not  designed  to  in- 
terfere with  the  powers  of  the  states  to  protect  the  lives, 
liberty  and  property  of  its  citizens,  nor  with  the  exer- 
cise of  that  power  in  the  adjudication  of  the  courts  of  the 
state  in  administering  the  process  provided  by  its  laws.4 

"The  Fourteenth  Amendment  in  forbidding  a  state  to 
make  or  enforce  any  law  abridging  the  privileges  and  im- 
munities of  citizens  of  the  United  States,  or  to  deprive  any 
person  of  life,  liberty  or  property  without  due  process 
of  law,  or  to  deny  to  any  person  the  equal  protection  of 
the  laws,  did  not  invest,  did  not  attempt  to  invest,  Con- 
gress with  power  to  legislate  upon  subjects  which  are 
within  the  domain  of  state  legislation."  5 

In  the  great  Civil  Rights  Cases6  Justice  Bradley,  in 
a  great  opinion  delivered  for  the  court,  conceded  this  prop- 
osition. Speaking  of  the  legislation  of  Congress  author- 
ized by  the  Fourteenth  Amendment  in  its  fifth  section 
for  its  enforcement,  he  said:  "Such  legislation  can  not 
properly  cover  the  whole  domain  of  rights  pertaining  to 
life,  liberty  and  property,  defining  them  and  providing 
for  their  vindication.  That  would  be  to  establish  a  code 
of  municipal  law  regulative  of  all  private  rights  between 
man  and  man  in  society.  It  would  be  to  make  Congress 
take  the  place  of  the  state  legislatures  and  to  supersede 
them.  It  is  absurd  to  affirm  that  because  the  rights  of 
life,  liberty  and  property  (which  include  all  civil  rights 

*  In  re  Converse,  137  U.  S.  624. 

5  Chief-Justice  Fuller  In  re  Rahrer,   140  U.  S.   554. 

«  109  U.  S.  3,  13. 


385  RIGHTS    AND    PRIVILEGES    UNDER 

that  men  'have )  are  by  the  amendment  sought  to  be  pro- 
tected against  invasion  on  the  part  of  the  state  without 
due  process  of  law,  Congress  may  therefore  provide  due 
process  of  law  for  their  vindication  in  every  case ;  and  that 
because  the  denial  by  a  state  to  any  person  of  the  equal 
protection  of  the  laws  is  prohibited  by  the  amendment, 
therefore  Congress  may  establish  laws  for  their  equal 
protection.  In  fine,  the  legislation  which  Congress  is  au- 
thorized to  adopt  in  this  behalf  is  not  general  legislation 
upon  the  rights  of  the  citizens,  but  corrective  legislation, 
that  is,  such  as  may  be  necessary  and  proper  for  counter- 
acting such  laws  as  the  states  may  adopt  or  enforce,  and 
which  by  the  amendment  they  are  prohibited  from  mak- 
ing or  enforcing,  or  such  acts  and  proceedings  as  the  states 
may  commit  or  take,  and  which  by  the  amendment  they 
are  prohibited  from  committing  or  taking." 

In  that  case  an  act  of  Congress  was  held  void  and  not 
warranted  by  the  Fourteenth  Amendment,  because  "it 
stepped  into  the  domain  of  local  jurisprudence  and  lays 
down  rules  for  the  conduct  of  individuals  in  society  to- 
wards each  other,  and  imposes  sanctions  for  the  enforce- 
ment of  those  rules,  without  referring  to  any  supposed 
action  of  the  state  or  its  authorities.  If  this  legislation  is 
appropriate  for  the  enforcement  of  the  prohibition  of  the 
amendment,  it  is  difficult  to  see  where  it  is  to  stop.  Why 
may  not  Congress  with  equal  show  of  authority  enact  a 
code  of  laws  for  the  enforcement  and  vindication  of  all 
rights  of  life,  liberty  and  property?  If  it  is  supposable 
that  states  may  deprive  persons  of  life,  liberty  or  prop- 
erty without  due  process  of  law  (and  the  amendment  it- 
self does  suppose  this),  why  should  not  Congress  proceed 


THE     FOURTEENTH     AMENDMENT.  387 

at  once  to  prescribe  due  process  of  law  for  the  protec- 
tion of  every  one  of  these  fundamental  rights,  in  every 
possible  case,  as  well  as  prescribe  equal  privileges  in  inns, 
public  conveyances  and  theatres?  The  truth  is,  that  the 
implication  of  a  power  to  legislate  in  this  manner  is  based 
on  the  assumption  that  if  the  states  are  forbidden  to  leg- 
islate or  act  in  a  particular  way,  and  power  is  conferred 
on  Congress  to  enforce  the  prohibition,  this  gives  Con- 
gress power  to  legislate  generally  on  that  subject,  and 
not  merely  power  to  provide  modes  of  redress  against  such 
legislation  or  action.  The  assumption  is  certainly  un- 
sound. It  is  repugnant  to  the  Tenth  Amendment,  which 
declares  that  'powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  states, 
are  reserved  to  the  states  respectively,  or  to  the  people.' ' 
See  Justice  Field's  opinion  in  Ex  parte  Virginia.7 

I  repeat  that  upon  these  and  many  other  authorities 
it  can  be  safely  predicated  that,  notwithstanding  the  Four- 
teenth Amendment,  the  states  still  have  sole  power  to 
make  and  execute  all  laws,  civil  and  criminal,  covering 
the  subjects  of  life,  liberty  and  property,  to  govern  all 
within  their  jurisdiction,  and  that  it  is  only  when,  by  any 
action,  they  affect  life,  liberty  or  property  and  legal 
equality  without  due  process  of  law,  the  federal  govern- 
ment, through  its  Congress  or  courts,  can  intervene.  Its 
powers  are  only  prohibitive,  corrective,  vetoing,  aimed 
only  at  undue  process  of  law.  But  here  arises  an  impor- 
tant question.  Notwithstanding  all  above  said,  as  to  the 
character  and  powers  of  the  federal  government  before  the 

7  100  U.  S.  page  360. 


388  RIGHTS    AND    PRIVILEGES    U$DER 

Fourteenth  Amendment,  and  notwithstanding  the  fact 
that  it  is  only  prohibitory,  and  not  a  grant  of  original 
power  of  governmental  legislation  and  action  to  the  fed- 
eral government,  like  that  granted  to  it  as  to  the  regula- 
tion of  commerce,  yet  the  federal  government,  by  this 
Fourteenth  Amendment,  is  given  a  power,  not  of  origi- 
nal legislation  and  action,  but  a  power  to  nullify  state 
action,  a  power  which,  while  not  taking  away  power  of 
action  in  the  states  in  the  first  instance  over  the  subjects 
specified  in  the  Amendment,  yet  none  the  less  a  power  en- 
larging the  functions  of  the  federal  government  over  what 
they  were  before  the  amendment  came,  a  power  largely 
detractive  from  state  power  in  last  resort.  The  federal 
government  has  power  to  counteract  action  of  a  state  that 
is  without  due  process,  or  denies  equal  protection  of  the 
laws.  Who  has  the  right  to  say  ultimately  what  is  due 
process,  what  is  such  denial;  whether  given  action  of  a 
state  is  due  or  undue  process,  or  undue  denial  of  equal 
protection  of  the  laws  ?  Clearly  the  national  government 
possesses  this  power,  else  the  amendment  would  do  no 
good ;  if  the  federal  court  has  to  take  what  the  state  court 
says  is  due  process,  or  is  not  an  unwarranted  denial  of 
right,  then  the  Fourteenth  Amendment  has  no  mission 
and  performs  no  office.  But  who  is  to  say  what  are  the 
rights  of  life,  liberty  and  property  and  person  within 
the  state  ?  It  might  be  thought,  upon  the  above  authority, 
as  an  original  question,  that  this  is  a  state  function. 
Who  is  to  say  decisively  what  is  liberty,  and  what  its 
rights,  and  what  is  property:  to  say  whether  the  right  to 
do  a  thing  is  a  right  covered  by  the  "liberty"  right  un- 
der the  amendment,  or  to  say  whether  a  thing  is  property 


THE    FOURTEENTH     AMENDMENT.  339 

under  the  amendment?  It  might  be  thought  that  this, 
too,  is  with  the  states,  and  that  it  is  only  when  that  which 
is  liberty  or  property  under  state  law  is  taken  away  or 
impaired  by  wrongful  process,  by  action  not  according 
to  law  in  its  due  process,  that  the  federal  power  can  in- 
tervene, for  it  might  seem  that  the  amendment  is  levelled 
only  at  that.  It  might  be  thought  that  it  was  not  the 
design  of  the  amendment  to  give  power  to  the  nation  to 
prescribe  what  is  liberty  and  its  rights,  what  is  property 
and  its  rights.  If  a  federal  court  can  say,  contrary  to  a 
state  court,  that  a  personal  right  claimed  by  a  person 
is  a  right  of  liberty,  or  that  a  thing  claimed  by  a  person 
is  property,  then  that  federal  court  would  seem  to  make  law 
defining  what  is  liberty  and  rights  under  it,  and  make 
law  defining  what  is  property  in  a  state.  If  it  can  do 
this  in  a  given  case,  why  does  not  the  principle  go  fur- 
ther and  allow  it  to  pass  generally  and  in  every  instance 
on  what  is  a  right  of  person  or  property  in  a  state?  If 
Congress  can  not  so  legislate,  a  federal  court  has  no  wider 
power  under  this  amendment.  Refer  back  to  the  holding 
in  the  Civil  Rights  Cases  that  if  Congress  can,  to  any  ex- 
tent, by  legislation,  define  and  declare  rights  of  this  kind, 
it  may  prescribe  a  full  code  of  law  to  regulate  the  inter- 
course of  man  with  man  in  society,  and  not  merely  cor- 
rect and  nullify  state  action  that  is  without  due  proc- 
ess of  law.  It  would  seem  that  if  a  federal  court  can 
define  the  law  by  which  citizens  of  a  state  shall  exercise 
liberty  or  acquire,  hold  or  lose  property,  or  say  what  is, 
what  is  not  a  contract  or  vested  property  under  the  law  of 
the  state,  it  thus  makes  law  for  the  state.  If  it  can  say 
whether  a  person  is  deprived  of  liberty  for  what  is  not 


390  RIGHTS    AND    PRIVILEGES    UNDER 

a  crime  by  state  law,  it  makes  criminal  law  for  the 
state.  If  it  can  say  that  there  is  a  contract  or  vested 
property  under  state  law,  when  the  state  court  says  there 
is  not,  the  federal  court  lays  down  law  for  the  state  gov- 
erning contracts  and  property,  and  it  simply  depends  on 
the  number  of  instances  in  which  it  acts  to  fix  the  ex- 
tent of  its  making  law  for  the  state.  Is  it  said  that  the 
state  court  may  say  that  this  is  not  a  contract  or  right 
or  property  vested,  when  in  fact  in  other  states  it  is  such  ? 
That  is  no  difference;  it  is  the  right  of  the  state  to  do 
this.  It  is  tested  by  state  law,  not  law  of  another  state. 
This  power  was  original  in  the  states.  Should  a  state 
court  say  finally  whether  a  right  claimed  by  a  person 
in  it  under  its  laws  is  a  lawful  right  of  liberty  or  proper- 
ty? Was  this  power  meant  to  be  taken  away  by  the 
amendment?  Rights  existing  under  state  laws  can  not 
be  taken  away  by  state  action  that  is  arbitrary,  undue 
process,  not  regular  and  usual  in  such  case,  a  process  not 
applicable  to  all  alike  in  similar  circumstances.  It  is 
only  undue  process,  action  not  warranted  by  the  ordinary 
law  that  is  impeached  by  the  Fourteenth  Amendment. 
Was  it  meant  to  go  further?  Several  cases  sustain  this 
position.  Leeper  v.  Texas8  holds  that  by  the  amendment 
the  powers  of  the  state  in  dealing  with  crime  are  not  lim- 
ited, except  that  the  state  can  not  deprive  persons  or 
classes  of  equal  and  impartial  justice,  and  that  law  in  its 
regular  course  in  the  state  is  due  process,  and  when  secured 
the  amendment  is  satisfied. 

The  amendment  presupposes  a  right  of  life,  liberty  or 

8139  U.  S,  462. 


THE    FOURTEENTH     AMENDMENT.  391 

property  already  existing  under  state  law,  which  it  pro- 
-  from  undue  process  prejudicial  to  the  right ;  but 
there  must  be  such  right  before  it  can  call  on  the  amend- 
ment for  defense.  Whence  does  that  right  come  ?  It  can 
only  come  from  state  law,  because  the  amendment  does  not 
originate  or  confer  it,  but  only  defends  it  from  illegal 
assault.  Therefore,  it  would  seem  that  unless  state  law 
recognizes  this  right  of  life,  liberty,  property  or  equal- 
ity, there  is  nothing  for  the  amendment  to  operate  upon; 
and  therefore  we  must  find  such  right  vested  under  state 
law.  The  Constitution  says  that  no  state  shall  pass  an 
ex  post  facto  law.  A  federal  court  has  right  to  say  wheth- 
er an  act  is  ex  post  facto,  because  that  is  the  particular 
thing  inhibited.  The  Constitution  says  that  no  state 
shall  pass  a  law  impairing  the  obligation  of  a  contract. 
It  might  seem  that  a  federal  court  does  not  say  what  is  an 
obligatory  contract  under  state  law  contrary  to  a  state 
decision,  but  that  the  federal  court  can  say  whether  an 
act  of  the  state  is  an  impairment  of  its  obligation,  for  that 
is  the  particular  thing  inhibited.  So,  it  might  seem  that 
the  federal  court  does  not  say  what  is  a  right  of  liberty, 
what  may  be  done  under  it,  or  what  is  property  under 
state  law ;  but  that  it  can  say,  of  its  own  judgment,  regard- 
less of  state  judgment,  whether  the  action  of  the  state 
upon  it  as  undue  process,  as  that  is  the  particular  thing 
inhibited  Remember,  that  the  amendment  gives  noth- 
ing, except  protection  to  existing  right.  Hence  state  de- 
cisions as  to  what  are  such  rights,  whether  they  do  or  do 
not  exist,  are,  or  ought  to  be,  controlling.  I  say  state 
decisions  as  what  are  such  rights,  not  as  to  whether  the 
process  by  which  the  state  may  impair  them  is  due  proc- 


392  RIGHTS    AND    PRIVILEGES    UNDER 

ess;  the  latter  is  clearly  for  federal  decision.  This  doc- 
trine would  accord  to  the  states  what  all  concede  they  had 
before  the  amendment,  would  take  nothing  from  the 
national  power.  It  would  preserve  the  benefit  of  local 
self-government,  the  dignity  of  the  states  as  erst  it  was. 
It  prevents,  largely,  at  least,  the  very  objectionable  fea- 
ture of  different  courts  in  the  same  state  propounding  the 
law  differently  on  the  same  state  of  facts,  and  thus  pro- 
motes symmetry  of  the  system  of  law.  It  preserves  the 
Union,  because  it  prevents  clash  and  conflict  between 
state  and  federal  governments.  This  clash  may  occur  at 
any  time.  In  the  past  it  has  occurred,  and  it  is  only  de- 
pendent upon  the  public  interest  and  excitment  existing  at 
any  particular  crisis  what  disaster  it  may  bring.  In  1813, 
in  Hunter  v.  Martin,9  the  Supreme  Court  of  Virginia, 
denying  the  right  of  the  United  States  Supreme  Court 
to  entertain  a  writ  of  error  to  its  judgment,  refused  to 
acknowledge  a  reversal  or  to  carry  out  the  mandate  of 
the  federal  Supreme  Court,  and  the  latter  court  reversed 
the  refusal,  and  itself  awarded  execution.  The  clash  later 
between  the  federal  Supreme  Court  and  that  of  Iowa  in 
the  matter  of  the  validity  of  railroad  bonds  in  Gelpckc 
v.  Dubuque10  is  another  instance.  Justice  Miller 
speaks11  of  the  disagreeable  duty  he  was  compelled  to 
perform  in  following  decisions  of  the  federal  Supreme 
Court  as  a  circuit  judge,  to  commit  to  jail  over  one  hun- 
dred citizens  of  Iowa  for  disobeying  a  federal  decision, 
they  obeying  in  good  faith  an  injunction  from  a  state  court 

94  Munford,   1;    1  Wheat.   304. 

101   Wall.   175. 

11  Butz  v.  City,  8  Wall.  587. 


THE    FOURTEENTH     AMENDMENT.  393 

— one  commanding  them  to  do,  the  other  not  to  do,  a  cer- 
tain thing.  Other  instances  of  legal  collision  have  oc- 
curred. This  doctrine  that  state  decisions  control  as  to 
the  substance  of  rights  under  state  law,  not  the  procedure 
affecting  them,  is  not  merely  a  matter  of  com^iity  between 
state  and  nation,  but  of  positive  law;  for  the  Judiciary 
Act  of  1789  says:  "The  laws  of  the  several  states,  ex- 
cept where  the  Constitution,  treaties  or  statutes  of  the 
United  States  otherwise  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law,  in  courts  of 
the  United  States,  in  cases  where  they  apply."  Why  this 
enactment?  Because  the  laws  of  the  states  gave,  cre- 
ated, governed  life,  liberty  and  property,  not  laws  of  the 
United  States,  and  this  being  so,  deference  was  to  be  paid 
them  in  federal  courts,  first,  because  parties  had  right  to 
claim  or  deny  title  under  them;  and,  second,  in  order  to 
avoid  having  conflicting  rules  of  decision  in  the  same  state. 
Xow,  "the  laws  of  the  several  states"  include  state  consti- 
tutions, statutes,  common  law  and  decisions  expounding 
them.12  It  will  be  obzserved  that  the  statute  says  that 
state  laws  shall  be  the  rule  of  decision  "in  trials  at  com- 
mon law."  It  is  not  to  be  inferred  from  this  that  there 
is  to  be  in  federal  courts  on  the  same  facts  different 
decisions  on  property  rights  in  equity  and  law  cases ;  that 
is,  that  the  federal  courts  will  follow  state  courts  in  the 
one  case  and  not  in  the  other.  It  might  be  so  thought 
from  some  cases;13  but  I  understand  those  cases  to  refer 

12  Bucher  v.  Cheshire,  125  U.  S.  582. 

is  Boyle  v.  Zacharie,  6  Peters  648;  Russell  v.  Southard,  12  How. 
139. 


394  RIGHTS    AND    PRIVILEGES    UNDER 

to  practice,  and  not  to  the  law  of  the  right  of  things.14 
But  Bucher  v.  Cheshire,  just  cited,  upholds  this  distinc- 
tion. I  think  that  clause  means  only  that  it  was  not  de- 
signed to  infringe  on  principles  of  equity  governing  chan- 
cery courts,  as  the  rules  in  many  respects  are  different. 
It  surely  can  not  mean  that  a  federal  court  acting  in  a 
state  in  a  chancery  cause  need  not  follow  an  equity  court  of 
that  state  in  its  decisions  of  equity  law  on  the  same  facts, 
but  would  in  a  law  action,  and  thus  have  clashing  decisions. 
But,  at  any  rate,  condtdty,  harmony  certainly  unite  to 
say  that  in  equity  cases  state  decisions  on  state  law  should 
be  followed,  and  such  is  the  universal  practice.  It  may 
be  that  some  federal  decisions  do  not  harmonize  with 
this  view;  some  decisions  seeming  to  go  into  the  field  of 
declaring  what  the  law  of  the  state  is,  what  it  should  be 
held  to  be,  contrary  to  state  decisions;  but  in  the  main 
the  federal  courts  do  follow  this  line. 

i*  Opinion  in  Brine  v.  Insurance  Co.  96  U.  S.  634. 


THE    FOURTEENTH     AMENDMENT.  395 


Chapter 


STATE  DECISIONS—  HOW  FAR  THEY  CON- 
TROL FEDERAL  COURTS. 

In  conformity  with  principles  stated  in  the  last  pages 
it  has  been  again  and  again  held  that  laws  of  the  state 
tell  in  federal  courts  what  is  good  title  to  land,  and,  in- 
deed, to  personal  property,  except  under  the  commercial 
law,  and  that  state  decisions  are  conclusive  thereon. 

"This  court  looks  to  the  law  of  the  state  in  which  land 
is  situated  for  the  rules  which  govern  its  descent,  alien- 
ation and  transfer,  and  the  effect  and  construction  of  wills 
and  other  conveyances."  1 

"The  laws  of  the  state  in  which  lands  are  situated  con- 
trol exclusively  its  descent,  alienation  and  transfer,  and 
the  effect  and  construction  of  instruments  intended  to  con- 
vey it"  2 

It  is  perfectly  clear  that  no  title  to  lands  can  be  ac- 
quired or  passed,  unless  according  to  the  law  of  the  state 
in  which  they  are  situated.  That  governs  its  descent, 
devise,  alienation  or  other  mode  of  its  transfer.  ^ 

iDe  Vaughn  v.  Hutchinson,  165  U.  S.  566;  Clark  v.  Clark,  178 
r.  8.  186,  20  Sup.  Ct.  873. 

2  Brine  v.  Ins.  Co.  96  U.  S.  627. 

-  Clark  v.  Graham,  6  Wheat.  577;  Clark  v.  Clark,  178  U.  S.  186; 
Abraham  v.  Casey,  ITU  U.  S.  210. 


396  RIGHTS    AND    PRIVILEGES    UNDER 

"The  construction  of  state  law  upon  a  question  affect- 
ing the  title  to  real  property  in  the  state  by  its  highest 
court  is  binding  upon  the  federal  courts"  4  So  as  to  stat- 
ute of  limitations.5  So  with  personalty  within  the  state. 
If  a  man  has  title  to  property  in  a  state,  he  must  look 
to  state  law  to  hold  it.  He  has  no  other  right.  If  he 
claim  a  personal  right,  a  right  of  liberty,  it  is  likewise. 
Living  in  the  state,  he  can  do  those  things  which  state 
law  allows;  he  can  not  do  those  things  which  it  forbids. 
He  is  subject  in  rights  of  liberty  and  property  to  state 
law. 

It  has  been  through  the  whole  life  of  the  nation  held  that 
the  construction  of  state  law  by  the  highest  state  court 
as  to  property,  the  interpretation  of  state  statutes,  their 
application  to  things,  the  construction  of  state  constitu- 
tions, and  their  application  to  things,  the  validity  of 
statutes,  what  are  offenses,  what  are  rights,  except  under 
commercial  law  of  general  application,  is  exclusively  with 
state  courts,  and  the  federal  courts  will  follow  their  de- 
cisions, unless  violative  of  federal  law.6 

"We  may  think  that  the  Supreme  Court  has  miscon- 

4  Williams  v.  Kertland,  13  Wall.  306;  U.  S.  v.  Fox.  94  U.  S.  315; 
Turner  v.  Wilkes,  173  U.  S.  461;  Arndt  v.  Griggs,  134  U.  S.  316 
(full). 

s  Percy  v.  Cockrill  (C.  C.  A.),  53  Fed.  872;  Brunswick  v.  Bank, 
99  Fed.  635. 

«Leeper  v.  Texas,  139  U.  S.  463;  Harpending  v.  Dutch  Church, 
16  Peters,  455;  N.  Y.  Life  Ins.  Co.  v.  Cravens,  20  Sup.  Ct.  962;  178 
U.  S.  389;  Fairfiled  v.  County,  100  U.  S.  47;  Leffingwell  v.  Warren, 
2  Black,  599 ;  Claiborne  Co.  v.  Brooks,  111  U.  S.  400 ;  McElvaine  v. 
Brush,  142  U.  S.  156;  Morley  v.  Lake  Shore  Co.  146  U.  S.  162; 
Bucher  v.  Cheshire  Co.  125  U.  S.  555;  Dick  Duncan  v.  McCall,  139 
U.  S.  449;  Norton  v.  Shelby  Co.  118  U.  S.  425;  Williams  v.  Eggle- 
ston,  170  U.  S.  303;  Loeb  v.  Trustees,  179  U.  S.  472,  21  Sup.  Ct.  174; 
Abraham  v.  Casey,  179  U.  S.  210. 


TUB    FOURTEENTH     AMENDMENT.  397 

strued  its  constitution  or  statute ;  but  we  are  not  at  lib- 
erty to  set  aside  its  judgments.  That  court  is  the  final 
arbiter  as  to  such  question."  7 

"The  elementary  rule  is  that  this  court  accepts  the  in- 
terpretation of  a  state  statute  affixed  to  it  by  the  court 
of  last  resort  thereof."8 

And  the  same  is  the  rule  as  to  the  law  of  the  state 
affecting  lii'e  or  liberty.9 

This  rule  that  the  federal  courts  follow  state  decisions 
as  to  state  laws  and  rights  under  them  is  almost  invariable. 
There  are  some  exceptions.  If  a  "federal  question"  is 
involved,  if  a  right  vested  in  the  party  by  federal  Con- 
stitution, statute  or  treaty,  or  protected  thereby,  is  in- 
volved, the  federal  court  forms  its  independent  judgment. 
By  this  it  might  be  argued  is  meant,  that  when  an  af- 
firmative right,  or  defense  or  protection  is  given,  granted 
by  federal  law,  as  the  federal  court  construes  and  applies 
that  law,  as  a  state  court  does  its  law,  the  federal  court 
will  think  for  itself.  We  may  misunderstand  here.  I 
say  this  is  where  the  federal  Constitution  or  law  origi- 
nates, confers  such  right  or  protection,  as  the  right  to  carry 
on  commerce,  the  right  to  exercise  a  federal  office,  the 
right  of  a  colored  man  to  vote.  But  the  Fourteenth  Amend- 
ment originates,  grants  nothing;  it  only  protects  existing 
rights  coming  from  the  state,  held  under  state  law,  from 
impairment  without  due  process  of  law.  Therefore,  it 

7  Forsyth  v.  Hammond,  166  U.  S.  518. 

s  Missouri.  Kansas  &  T.  R.  R.  v.  McCann,  174  U.  S.  586;  Mer- 
chants' Bank  v.  Pennsylvania,  167  U.  S.  461 ;  Morley  v.  Lake  Shore 
Co.  HG  U.  S.  102:  Board  v.  Louisiana,  179  U.  S.  622,  21  Sup.  Ct. 
263. 

•  Nobles  v.  Georgia,  168  U.  S.  398;  Leeper  v.  Texas,  139  U.  S. 
462. 


RIGHTS    AND    PRIVILEGES    UNDER 

is  with  the  state  court  to  say  whether  a  party  has  a  right 
to  do  a  certain  thing,  or  a  vested  right  of  property,  and 
the  federal  court  recognizes  that  decision,  if  such  right 
is  affected  only  by  due  process  of  law. 

Contracts. — From  principles  above  stated,  as  an  original 
question,  it  might  seem  that  it  is  for  the  state  court 
to  say,  under  that  clause  of  the  federal  Constitution 
prohibiting  states  from  passing  any  law  impairing  the 
obligation  of  a  contract,  first,  whether  by  state  law 
there  is  a  contract  to  be  impaired,  since  the  state  has,  by 
the  police  power,  the  right  to  say  what  shall  be  a  valid 
contract,  and  what  no  contract,  and  because,  second,  par- 
ties must  contract  according  to  the  law  of  the  state;10  and 
also  that  clause  does  not  define  in  what  a  contract  con- 
sists, just  as  the  Fourteenth  Amendment  does  not  de- 
fine liberty  or  property,  but  leaves  it  to  state  law  to  do  this. 
As  the  state  court  held  that  a  judgment  was  not  a  con- 
tract, it  was  held  that  an  act  reducing  interest  on  a  judg- 
ment did  not  viplate  the  clause  against  the  impairment  of 
contract,11  and  followed  the  state  court  holding  there  was 
no  contract.  It  is  with  the  state  court  to  say  what  is  a  con- 
tract, and  a  contract  existing  according  to  state  law;  it  is 
then  with  the  federal  judiciary  to  say,  of  its  own  judg- 
ment, whether  the  state  act  impairs  its  obligation,  as 
it  is  with  the  state  court  to  say  whether  state  laws  give 
a  right  personal  or  proprietary,  and  if  they  do,  then  it  is 
with  the  federal  court  to  say  whether  it  has  been  worsted 
by  state  action  without  due  process.  That  it  is  with  the 

10  Hooper  v.  California,  155  U.  S.  648. 
"Morley  v.  Lake  Shore  Co.  146  U.  S.  162. 


THE     FOURTEENTH     AMENDMENT.  399 

state  courts  to  say  whether  by  state  law  there  is  a  valid  con- 
tract would  seem  clear  from  many  cases.12 

As  an  original  question  it  might  be  with  an  appearance 
of  plausibility  claimed  that  the  true  rule  ought  to  be  that 
the  existence  or  non-existence  of  a  contract  should  be  test- 
ed by  state  decision,  if  any;  yet  cases  are  easily  found 
antagonizing  this.  Louisville  Co.  v.  Palmes13  holds  that 
the  federal  question  before  the  court  is  whether  the  state 
court  gave  effect  to  a  state  law  which  impairs  the  obli- 
gation of  a  contract ;  "in  determining  which,  and  in  deter- 
mining whether  there  was  a  contract,  the  court  is  not  nec- 
essarily governed  by  previous  decisions  of  state  courts, 
except  where  they  have  been  so  firmly  established  as  to 
constitute  a  rule  of  property."  This  asserts  the  power  of 
the  federal  judiciary,  not  only  to  say  whether  state  law 
is  such  as  to  impair  the  obligation  of  a  contract,  but  also 
to  say  that  by  state  law  there  is  a  contract  contrary  to 
state  decision.  Is  this  not  making  state  law  of  contract; 
saying  what  constitutes  a  contract  by  state  law  ? 

The  case  of  McCullough  v.  Virginia14  also  holds  this 
doctrine.  Other  cases  assert  this.15  After  writing  the 
above  I  meet  with  the  case  of  Houston,  etc.,  R.  R.  Co.  v. 
Texas,16  which  sustains  this  view.  Railroad  companies 

12  Wade  v.  Travis  County,  174  U.  S.  499;  Hartford  Ins.  Co.  v. 
Chicago,  etc.  175  U.  S.  91,  108.  Same  case  in  C.  C.  A.  36  U.  S. 
App.  156,  70  Fed.  201 ;  Lehigh  Water  Co.  v.  Easton,  121  U.  S.  392 ; 
Com.  Bank  v.  Buckingham,  5  How.  317,  343;  Central  Land  Co. 
v.  Laidley,  159  U.  S.  110. 

is  109  U.  S.  244. 

"  172  U.  S.  102,  19  Sup.  Ct.  134. 

«Xew  Orleans  Water  Works  v.  Louisiana  Sugar  Co.  125  U.  S. 
18;  C.  B.  &  Q.  v.  Nebraska,  170  U.  S.  57.  See  66  Am.  St.  R.  227. 

iol77  U.  S.  77;  20  Sup.  Ct.  545;  Stearns  v.  Minnesota,  179  U.  S. 
223,  so  holds;  so  Board  v.  Louisiana,  179  U.  S.  622,  21  Sup.  Ct.  263. 


400  RIGHTS    AND    PRIVILEGES    UNDER 

owed  bonds  to  Texas.  Texas  passed  acts  allowing 
payment  of  their  interest  to  be  made  in  certain 
treasury  notes  which  had  been  issued  by  the  state. 
The  railroad  company  made  some  payments  in 
such  treasury  notes.  Then  an  act  was  passed 
under  which  such  payments  were  disregarded  on  the 
theory  that  such  treasury  notes  or  warrants  were  is- 
sued in  violation  of  the  state  constitution.  The  highest 
state  court  so  held,  thus  deciding  that  payment  in  the  notes 
and  the  acceptance  by  the  state  made  no  contract  of  pay- 
ment. On  appeal  the  United  States  Supreme  Court  held 
just  the  reverse,  held  that  the  state  constitution  did  not 
invalidate  the  treasury  notes,  and  did  not  invalidate  the 
acts  authorizing  their  issue,  and  that  when  the  railroad 
paid  them,  and  the  state  received  them,  a  contract  arose, 
which  was  impaired  by  the  later  act  ignoring  such  pay- 
ment. In  the  opinion  Mr.  Justice  Peckham  says:  "Upon 
these  facts  this  court  has  jurisdiction,  and  it  is  its  duty 
to  determine  for  itself  the  existence,  construction  and 
validity  of  the  alleged  contract,  and  also  whether,  as  con- 
strued by  this  court,  it  has  been  impaired  by  any  subse- 
quent state  legislation,  to  which  effect  has  been  given  by 
the  court  below."  For  this  holding  the  justice  cites  cases 
given  in  the  footnote.17 

In  the  McCullough  Case  the  court  said,  "This  court 
has  the  right  to  enquire  and  judge  for  itself  with  regard 

IT  Proprietors  of  Bridge  v  Hoboken  Land  Co.  1  Wall.  116;  North- 
western University  v.  People,  99  U.  S.  309;  Fisk  v.  Jefferson  Police 
Jury,  116  U.  S.  131;  N.  O.  Waterworks  Co.  v.  Louisiana  Sugar  Co. 
125  U.  S.  18;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103;  Bacon 
v.  Texas,  163  U.  S.  207 ;  McCullough  v.  Virginia,  172  U.  S.  102. 


THE'    FOURTEENTH     AMENDMENT.  401 

to  the  making  of  the  alleged  contract  with  the  holders  of 
the  coupons,  without  regard  to  the  views  or  decisions 
of  the  state  court  in  relation  thereto." 

It  thus  appears  clear  notwithstanding  some  dissonant 
decisions  above  cited,  that  it  is  alone  with  the  federal  ju- 
diciary to  say  finally  whether  under  state  law  a  contract 
i-xi-rs,  and  if  it  does  exist,  whether  the  state  law  impairs 
its  obligation.  This  position  seems,  perhaps,  the  better 
reasoning.  It  is  on  the  theory  that  contracts,  particularly 
commercial  contracts,  are  of  such  vital  importance,  and 
are  universal,  and  are  governed  by  general  law,  and  that 
therefore  their  import  and  obligation  should  be  left  to 
the  nation,  and  be  protected  by  it.  Here  we  may  fitly 
apply  the  eloquent  prayer  of  Cicero:  "Nee  enim  alia  lex 
Romae,  alia  Athenis,  alia  nunc,  alia  posthac;  sed  et  omnes 
gentes,  et  omni  tempore  una  lex  et  sempiterna  et  immu- 
tabilis  continebit." 

It  is  obviously  desirable  that  negotiable  securities,  all 
commercial  contracts  governed  by  the  mercantile  law  which 
pervades  the  business  of  the  whole  country  from  ocean  to 
ocean,  should  be  tested  by  rules  and  decisions  applicable, 
not  in  some  states  alone,  but  the  same  in  all  states.  It 
would  be  dangerous,  disastrous  to  such  commercial  busi- 
ness to  have  diverse,  variant  and  conflicting  decisions  in  ' 
different  states  under  commercial  law,  which  should  be 
common  and  the  same  everywhere.  It  would  not  do  to 
have  commercial  securities  held  valid  in  one  state  and 
invalid  in  another.  Hence  there  is  much  sound  reason  for 
the  holding  of  the  Supreme  Court  that  it  and  other  federal 
courts  may,  in  cases  involving  such  commercial  matters, 
act  upon  their  own  independent  judgment. 


402  RIGHTS    AXD    PRIVILEGES    UNDER 

Federal  Question. — Except  in  cases  between  residents 
of  different  states,  where  jurisdiction  in  the  federal  courts 
rests  on  such  diverse  citizenship,  in  order  to  give  federal 
courts  jurisdiction  there  must  be  a  "federal  question"  in- 
volved in  the  case.18  The  federal  Circuit  and  Supreme 
Courts  have  jurisdiction  in  cases  arising  under  the  Con- 
stitution, laws  or  treaties  of  the  United  States.  "When  a 
state  violates  any  right  protected  by  the  Fourteenth 
Amendment,  this  jurisdiction  attaches,  for  then  there  is 
a  federal  question.  The  act  of  Congress,  March  3,  1887, 
and  the  amendatory  act  13th  of  August,  1888,  provide 
that  "The  circuit  courts  of  the  United  States  shall  have 
original  cognizance,  concurrent  with  the  courts  of  the  sev- 
eral states,  of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  where  the  matter  in  dispute  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  two  thousand 
dollars,  and  arising  under  the  Constitution  of  the  United 
States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority."  Therefore,  where  anyone  is  deprived 
of  life,  liberty  or  property  without  due  process  of  law,  or 
is  denied  the  equal  protection  of  the  laws,  or  the  privi- 
leges or  immunities  of  citizens  of  the  United  States  are 
abridged,  recourse  for  remedy  can  be  had  to  the  United 
States  Circuit  Court  for  restraint  by  injunction  or  other 
proper  process.  If  the  suit  involve  debt  or  property,  it 
must  be  of  the  value  of  $2,000  to  give  original  jurisdic- 
tion in  the  Circuit  Court,  though  the  case  involved  a  right 
under  the  Constitution  of  the  United  States ;  for  the  Su- 
preme Court  has  said :  "It  is  clear  that  a  circuit  court  can. 

is  Byers  v.  McAuley,  149  U.  S.  608 ;  Turner  v.  Richardson,  180 
U.  S.  87,  21  Sup.  Ct.  295. 


THE     FOURTEENTH     AMENDMENT.  403 

not  under  that  statute  (Act  1887  as  corrected  by  Act  1888) 
take  original  cognizance  of  a  case  arising  under  the  Con- 
stitution or  laws  of  the  United  States,  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,  or  of  a  con- 
troversy between  citizens  of  different  states,  or  of  a  con- 
troversy between  citizens  of  a  state  and  foreign  states, 
citizens  or  subjects,  unless  the  sum  in  dispute,  exclusive 
of  interest  and  costs,  exceeds  $2,000."  Opinion  in  U.  S. 
v.  Sayward,19  re-affirmed  in  Fishback  v.  Western  Union20 
and  Holt  v.  Manufacturing  Company.21 

It  is  not  requisite  for  jurisdiction  that  the  right  or  thing 
claimed  come  from  the  law  of  the  United  States ;  though 
it  come  from  state  law,  it  is  protected  against  unlawful 
state  action.  There  is  a  federal  question,  if  it  be  such  a 
right,  and  is  so  adversely  acted  upon  by  state  authority. 
The  original  Constitution  gives  the  federal  courts  juris- 
diction in  all  cases  in  law  and  equity,  "arising  under  this 
Constitution,  the  laws  of  the  United  States  and  treaties 
made,  or  which  shall  be  made,  under  their  authority."22 
And  the  Fourteenth  Amendment  having  brought  with- 
in the  federal  jurisdiction  and  power  the  protection 
against  state  action,  except  by  due  process  of  law,  of  life, 
liberty,  property  and  equality  before  the  law,  the  judi- 
cial power  of  the  nation  necessarily  extends  thereto. 

When  does  a  question  "arise  under"  the  Fourteenth 
Amendment  to  give  the  federal  courts  jurisdiction? — "A 

i»  160  U.  S.  p.  497. 

20  161  U.  S.  96,  99. 

21  176  U.  S.  68,  73  and  North  American  Co.  v.  Morrison,  178  U.  S. 
262,  20  Sup.  Ct.  869;  Illinois  C.  R.  Co.  v.  Adams   (Jan.  1901),  21 
Sup.  Ct.  251. 

22  Art.  3,  Sec.  2. 


404  RIGHTS    AND    PRIVILEGES    UNDER 

\ 

case  in  law  or  equity  consists  of  the  right  of  one  party,  as 
well  as  the  other,  and  may  be  truly  said  to  arise  under 
the  constitution  or  a  law  of  the  United  States,  whenever 
its  correct  decision  depends  upon  a  right  construction  of 
either."  2S 

I  refer  to  the  case  of  Murdock  v.  Memphis24  as  elaborate 
upon  this  subject. 

Though  there  be  several  questions  involved,  yet  if  only 
one  is  of  federal  nature,  that  is  sufficient  for  original  ju- 
risdiction, but  not  for  an  appeal  by  writ  of  error  to  the 
Supreme  Court  from  a  decree  or  judgment  of  the  highest 
court  of  the  state ;  for  if  there  be  more  than  one  question 
in  the  record,  and  one  of  them  is  purely  a  state  question, 
not  a  federal  question,  on  which  the  state  decision  may 
stand,  that  precludes  such  appeal  or  writ  of  error.25 

Amount  or  Value  in  Suit. — If  the  sum  of  money  or  value 
of  the  thing  in  dispute  is  less  than  two  thousand  dollars, 
the  party  who  claims  that  his  rights  are  violated  contrary 
to  the  Fourteenth  Amendment  is  not  without  redress.  He 
can  sue  in  the  state  court,  and  thence  appeal  to  the  Su- 
preme Court  of  the  United  States  without  regard  to 
amount  or  value  in  controversy ;  or  if  sued  by  another  in 
a  state  court,  he  can  likewise  appeal  to  the  Supreme  Court 
of  the  United  States  if  the  highest  court  of  the  state  de- 
cides against  his  right.  But  as  just  shown  (p.  402),  he 
can  not,  in  the  first  step,  go  into  the  Circuit  Court. 

23  Mayor  v.  Cooper,  6  Wall.  252;  Martin  v.  Hunter,  1  Wheat. 
314;  Cohens  v.  Virginia,  6  Wheat.  264;  Osburn  v.  Bank,  9  Wheat. 
738;  Ableman  v.  Booth,  21  How.  506;  New  Orleans  v.  Benjamin,  153 
U.  S.  411;  Claflin  v.  Houseman,  93  U.  IS.  130. 

2*20  Wall.  591. 

25  Hopkins  v.  McLure,  133  U.  S.  380;  Bacon  -  Texas,  163  U.  S. 
207;  Beatty  v.  Fenton,  135  U.  S.  244. 


TUB     FOURTEENTH     AMENDMENT.  4Q5 

Exceptions  to  Knle  of  Following  State  Decisions — I  have 
above  stated  some  matters  pertinent  under  this  head. 
There  are  exceptions  to  the  rule  that  federal  courts  fol- 
low state  courts  in  determining  whether  there  is,  or  is  not, 
a  valid  binding  contract,  as  above  stated  (p.  397).  A 
late  case26  thus  states  the  rule:  "Questions  of  public 
policy  as  affecting  the  liability  for  acts  done  or  upon  con- 
tracts made  and  to  be  performed  within  one  of  the  states 
of  the  Union — when  not  controlled  by  the  Constitution, 
laws  or  treaties  of  the  United  States,  or  by  the  principles 
of  the  commercial  and  mercantile  law,  or  of  general  juris- 
prudence, of  national  or  universal  application,  are  gov- 
erned by  the  law  of  the  state,  as  expressed  in  its  own  con- 
stitution and  statutes,  or  declared  by  its  highest  court," 
citing  many  cases.  These  exceptions  admit  the  rule,  and 
are  only  made  exceptions  from  necessity.  Perhaps,  for  in- 
stance, if  a  state  court  were  to  hold  that  a  contract  exempt- 
ing a  common  carrier  from  liability  for  negligence,  or  a 
contract  contra  bonos  mores,  contrary  to  general  public 
policy,  or  liability  for  fellow  servants'  acts,  were  valid, 
the  federal  courts  would  not  follow.  Holdings  of  state 
courts  upon  general  commercial  law,  everywhere  domi- 
nant, confined  to  no  state  bounds,  but  which  ought  to  pre- 
vail wherever  in  the  nation  the  wings  of  commerce  go — all 
decisions  contrary  to  general  law —  would  not  be  followed 
in  federal  courts ;  but  those  are  exceptions. 

"The  courts  of  the  United  States  are  not  bound  by  de- 
cisions of  the  state  courts  upon  questions  of  general  com- 
mercial law."27  But  these  exceptions  do  not  include 

2«  Hartford  Ins.  Co.  v.  Chicago,  etc.  Railway,  175  U.  S.  91,  100. 
27  Gates  v.  National  Bank,  100  U.  S.  239;  Washburn  &  Mfg.  Co. 
v.  Reliance  M.  Ins.  Co..  179  U.  S.  1,  21  Sup.  Ct.  1. 


406  RIGHTS    AND    PRIVILEGES    UNDER 

contracts  outside  the  commercial  or  mercantile  law,  those 
contracts  relative  to  the  sale  and  purchase  of  real  and  per- 
sonal property,  or  charging  it  with  debts,  contracts  not 
made  under  the  commercial  or  mercantile  law.  Those 
exceptions  do  not  militate  against  the  well-established 
principle  that  the  courts  of  the  United  States  follow  the 
decisions  of  the  highest  state  courts  upon  the  construction 
and  application  of  state  laws  and  personal  rights  under 
them,  arid  title  to  real  and  personal  property  under  such 
state  laws. 

Where  there  has  been  no  state  decision  upon  the  mat- 
ter, of  course  the  federal  courts  are  compelled  to  form 
an  independent  judgment.28 

This  doctrine  of  exception  from  following  state  de- 
cisions found  early  expression  in  Swift  v.  Tyson,29  hold- 
ing the  judiciary  act  declaring  state  laws  rules  of  deci- 
sions in  federal  courts  had  "uniformly  been  supposed  by 
the  Supreme  Court  to  be  limited  in  application  to  state 
laws  strictly  local ;  that  is  to  say,  the  positive  statutes  of 
the  state  and  the  construction  thereof  adopted  by  the  local 
tribunals,  and  to  rights  and  titles  to  things  having  a  per- 
manent locality,  such  as  rights  and  titles  to  real  estate,  and 
other  matters  immovable  and  intra-territorial  in  their 
nature  and  character.  The  section  does  not  extend  to 
contracts  and  other  instruments  of  a  commercial  nature, 
the  true  interpretation  and  effect  whereof  are  to  sought, 
not  in  the  decisions  of  the  local  tribunals,  but  in  the 
general  principles  and  doctrines  of  commercial  jurispru- 
dence." This  statement  seems  sound. 

28  Burgess  v.  Seligman,  107  U.  S.  20. 
2»  16   Peters,   1. 


THE    FOURTEENTH     AMENDMENT.  407 

"When  a  question  to  be  determined  by  the  Supreme 
Court  is  one  of  general  law,  it  must  be  settled  by  reference 
to  all  authorities,  and  not  by  decisions  of  the  highest 
state  tribunal  where  the  case  arose.  In  such  case  the  de- 
cisions of  such  state  court  are  not  binding"  on  federal 
courts.30  That  was  a  case  of  liability  of  a  master  for 
injury  to  one  servant  from  the  negligence  of  another  ser- 
vant— a  matter  of  general  law. 

Overruled  State  Decisions,  Effect  of — The  federal  courts 
follow  the  last  decision  of  the  highest  state  court  in  its 
construction  and  application  of  state  law.  The  federal 
Supreme  Court  has  even  everruled  its  own  former  decisions 
made  according  to  a  state  decision  in  order  to  follow  a 
later,  different  state  decision.  In  Green  v.  Neal31  the 
court  said:  "In  a  great  majority  of  cases  brought  before 
the  federal  tribunals  they  are  called  on  to  enforce  the  laws 
of  the  states.  The  rights  of  parties  are  determined  un- 
der those  laws,  and  it  would  be  a  strange  perversion  of 
principle  if  the  judicial  exposition  of  those  laws  by  state 
tribunals  should  be  disregarded.  These  expositions  con- 
stitute the  law  and  fix  the  rule  of  property.  Rights  are 
acquired  under  this  rule,  and  it  regulates  all  transactions 
which  come  within  its  scope." 

This  rule  of  following  the  latest  state  decision,  overrul- 
ing former  state  decisions,  has  been  often  applied  in  fed- 
eral courts,  the  Supreme  Court  even  reversing  lower  fed- 

30  B.  &  O.  R.  R.  Co.  v.  Baugh,  149  U.  S.  368. 

si  6  Peters,  291.     See  O'Brien  v.  Wheelock,  95  F.  883. 


408  RIGHTS    AND    PRIVILEGES    UNDER 

eral  courts  because  of  state  decisions  rendered  subsequent- 
ly to  such  federal  courts  decision.32 

Exceptions  to  Rule  of  Following  Latest  State  Decisions. — 
Confessedly  there  are  exceptions  to  this  rule  of  following 
the  latest  of  conflicting  state  decisions,  cases  in  which  the 
Supreme  Court  has  adhered  to  the  former  and  refused  to 
follow  later  state  cases.  These  cases  are  those  where 
county  or  municipal  bonds  were  issued,  negotiable  in  char- 
acter, which  went  into  the  hands  of  holders  for  value,  un- 
der statutes  held  by  earlier  decisions  to  authorize  such 
bonds,  but  which,  by  later  state  decisions,  overruling  for- 
mer ones,  were  held  not  to  have  authorized  such  bonds. 
Such  bonds  have  been  sustained  by  the  Supreme  Court 
notwithstanding  later  state  decisions  which  would  render 
the  bonds  void,  and  this  on  the  theory  that  they  went  into 
the  hands  of  purchasers  on  the  faith  of  the  prior  decision, 
and  thus  made  contracts  which  could  not  be  impaired.  In 
one  of  these  cases33  the  opinion  says:  "As  a  rule,  we  treat 
the  construction  which  the  highest  court  of  a  state  has 
given  a  statute  of  the  state  as  part  of  the  statute,  and 
govern  ourselves  accordingly;  but  where  different  con- 
structions have  been  given  to  the  same  statute  at  different 
times,  we  have  never  felt  ourselves  bound  to  follow  the 
latest  decisions,  if  thereby  contract  rights  which  have  ac- 
crued under  earlier  rulings  will  be  affected."  The  opinion 

32Leffingwell  v.  Warren,  2  Black  599;  Wade  v.  Travis  Co.  174  U. 
S.  499,  508;  U.  S.  v.  Morrison,  4  Pet.  124;  Backus  v.  Fort  Street 
Co.  169  U.  S.  557 ;  Bauserman  v.  Blunt,  147  U.  S.  647 ;  Stutsman  v. 
Wallace,  142  U.  S.  293;  Suydam  v.  Williamson,  24  How.  427;  48 
Am.  &  Eng.  Corp.  Cas.  257;  State  R.  R.  Tax  Cases,  92  U.  S.  575; 
Moores  v.  Bank,  104  U.  S.  625. 

33  Douglass  v.  Pike  County,   101   U.   S.   686. 


TUB    FOURTEENTH     AMENDMENT.  409 

quotes  the  language  of  Chief -Justice  Taney  in  Rowan  v. 
Runnels:34  "Undoubtedly  this  court  will  always  feel 
bound  to  respect  decisions  of  state  courts,  and  from  the 
time  they  are  made  regard  them  as  conclusive  in  all  cases 
upon  the  construction  of  their  own  laws.  But  we  ought 
not  to  give  them  a  retroactive  effect,  and  allow  them  to 
render  invalid  contracts  entered  into  with  citizens  of  other 
states  which,  in  the  judgment  of  this  court,  were  lawfully 
made."  Later  this  doctrine  was  held  not  to  be  limited 
to  contracts  with  citizens  of  other  states,  but  to  apply  to 
all  contracts.35  The  opinion  in  Douglass  v.  Pike  County3-6 
further  says :  "We  recognize  fully  not  only  the  right  of  the 
state  court  but  its  duty  to  change  its  decisions  whenever, 
in  its  judgment,  the  necessity  arises.  It  may  do  this  for 
new  reasons,  or  because  of  a  change  of  opinion  in  respect 
to  the  old  ones;  and  ordinarily  we  will  follow  them,  ex- 
cept so  far  as  they  affect  rights  vested  before  the  change 
was  made.  The  rules  which  properly  govern  courts  in 
respect  to  past  adjudications  are  well  expressed  in  Boyd 
v.  Alabama,  94  U.  S.  645." 

In  Gelpcke  v.  Dubuque  -3T  this  doctrine  was  held.  So 
in  several  other  cases.38 

This  doctrine  of  departure  from  state  decisions  by  fed- 
eral courts  as  regards  contracts,  and  it  seems  to  be  confined 
to  contracts,39  bears  the  face  of  justice;  that  a  contract 

3*5  How.  134. 

ss  Ohio  Life  Ins.  Co.  v.  Debolt,  16  How.  416. 

3«  101  U.  S.  686. 

37  1  Wall.   175. 

ss  Los  Angeles  v.  Los  Angeles,  177  U.  S.  553;  Folsom  v.  Ninety-six, 
159  U.  S.  611;  Mitchel  v.  Burlington,  4  Wall.  270;  Havmeyer  v. 
Iowa  Co.  3  Wall.  294;  Rondot  v.  Rogers,  99  Fed.  202. 

39  Pleasant  Township  v.  Aetna  L.  Ins.  Co.  138  U.  S.  67 ;  Loeb  v. 
Trustees,  179  U.  S.  472,  21  Sup.  Ct.  174. 


410  RIGHTS    AND    PRIVILEGES    UNDER 

good  when  made  under  the  statute  law  as  then  expounded 
by  the  state  court  should  not  be  impaired  by  later  adjudi- 
cations. It  is  confined  to  contracts,  because  the  court 
decided  those  cases  under  the  clause  of  the  Constitution 
prohibiting  states  from  passing  any  law  impairing  con- 
tracts. I  say  that  the  doctrine  seems  just;  but  can  it  be 
sustained  on  strict  legal  principles,  even  in  cases  of  con- 
tract ?  It  can  not  be  without  a  denial  of  established  prin- 
ciples. A  judicial  decision  does  not  make  law.  It  is  sup- 
posed only  to  declare  what  the  law  without  it  is,  what  the 
law  before  it  was.  The  legislature  makes  law,  the  court 
expounds  law.  Now,  the  first  of  two  decisions  of  the  same 
court  upon  the  same  facts,  when  overruled,  was  not  law  up 
to  the  time  of  the  second  decision,  and  thereafter  not  law, 
but,  in  legal  contemplation,  after  the  second  decision  the 
first  never  for  one  moment  was  the  law.  The  law  of  the 
two  decisions  can  not  occupy  the  same  time.  The  first 
was  a  misconstruction,  a  mistake  of  law;  the  second  pro- 
pounds the  true  law.  Blackstone  says:  "But  even  in  such 
cases  the  subsequent  judges  do  not  pretend  to  make  a  new 
law,  but  to  vindicate  the  old  one  from  misrepresentation. 
For  if  it  be  found  that  the  former  decision  is  manifestly 
absurd  or  unjust,  it  is  declared,  not  that  such  a  sentence 
was  bad  law,  but  that  it  was  not  law"*0 

In  Gelpcke  v.  Dubuque41  the  great  Justice  Miller, 
than  whom  few  greater  jurists  have  sat  on  the  Supreme 
Bench,  if  any,  maintained  in  dissent  that  though  the  second 
Iowa  case  overruling  a  former  one  would  destroy  the 
bonds,  yet  it  must  be  so,  as  the  former  decision  never  was 

*o  1  Bl.  Comm.  69. 
4i  1  Wall.  175. 


TED    FOURTEENTH     AMENDMENT.  4H 

law.  He  said  that  the  Supreme  Court  should  follow  the 
last  decision  on  state  law,  and  that  though  the  bonds  is- 
sued while  the  first  decision  that  the  statute  authorized 
their  issue  was  in  force,  yet  that  decision  never  was  law. 
He  said:  "I  understand  the  doctrine  to  be  in  such  cases, 
not  that  the  law  is  changed,  but  that  it  was  always  the  same 
as  expounded  by  the  later  decision,  and  that  the  former  de- 
cision was  not,  never  had  been,  the  law,  and  is  overruled 
for  that  very  reason.  The  decision  of  this  court  contra- 
venes this  principle,  and  holds  that  the  decision  of  the 
court  makes  the  law,  and  in  fact  that  the  same  statute 
means  one  thing  in  1853  and  another  in  1859."  He  went 
on  to  show  the  conflict  with  former  decisions. 

The  distinguished  law  writer  Bishop,  speaking  of  Doug- 
lass v.  Pike  County42  says:  "The  power  both  of  making 
and  repealing  laws  is  in  our  legislatures,  and  the  courts 
have  no  jurisdiction,  even  in  the  minutest  degree,  in  the 
matter.  They  can  say  what  a  law  means ;  and,  if  afterwards 
they  see  that  they  have  made  a  mistake,  they  can  correct 
this  error  by  overruling  the  former  decision.  The  conse- 
quence of  which  overruling  is,  that  the  blunder  is  thence- 
forward deemed  never  to  have  been  law.  This  doctrine 
is  fundamental  in  our  jurisprudence,  rendered  irrepeal- 
able,  it  is  believed,  by  various  provisions  of  our  written 
constitutions,  both  national  and  state.  Still,  unhappily, 
in  seeming  violation  of  this  doctrine,  the  courts  have  held 
that  where  a  statute  has  received  what  they  term  a  settled 
exposition,  then  a  contract  has  been  made  which  under  it 
is  good,  there  is  created  an  obligation  which  can  not  be 

« 101  U.  S.  677. 


412  RIGHTS    AND    PRIVILEGES    UNDER 

overturned  by  decisions  overruling  the  earlier  exposi- 
sition."4£  Exactly  similar  doctrine  is  asserted  in  other 
cases.44 

I  refer  particularly  in  support  of  this  view  to  the  able 
discussion  in  Alferitz  v.  Borgwardt,45  and  I  beg  to  refer 
also  to  an  opinion  filed  by  me  in  the  case  of  Weston  v. 
Ralston.40 

The  Constitution  says  no  state  shall  make  any  "law" 
impairing  contracts.  "Law"  is  the  same  in  both  cases. 
In  Swift  v.  Tyson47  Justice  Story  said :  "In  the  ordinary 
use  of  language  it  will  hardly  be  contended  that  the  de- 
cisions of  courts  constitute  laws.  They  are,  at  most, 
only  evidence  of  what  the  laws  are ;  and  are  not  of  them- 
selves law.  They  are  often  re-examined,  reversed  and 
qualified  by  the  courts  themselves  whenever  they  are  found 
to  be  either  defective,  ill-founded  or  otherwise  incorrect." 
This  statement  is  quoted  and  approved  in  later  cases.48 

Having  written  to  this  point  I  meet  the  case  of  Alferitz 
v.  Borgwardt.49  The  Supreme  Court  of  California  had 
held  that  under  a  certain  kind  of  mortgage  title  vested, 
but  later  held  that  it  did  not,  and  in  the  case  cited  the 
court  said:  "But  appellant  contends  that  it  (the  first 
decision)  states  the  law  upon  the  subject,  and  that  law 

43  Bishop,  Contracts,  Sec.  569. 

44  Allen  v.  Allen,  16  L.  R.  A.  646;   Ray  v.  Western  Pa.  Gas  Co. 
138  Pa.  St.  576,  12  L.  R.  A.  290;  Wood  v.  Brady,  150  U.  S.  18;  Frink 
v.  Darst,  14  111.  311;  Wade  v.  Travis  Co.  174  U.  S.  499. 

45  126  Cal.  201. 

46  36  S.  E.  p.  449,  47  W.  Va. 

47  16  Peters,  p.   18. 

48  R.  R.  Co.  v.  Bank,  102  U.  S.  29,  54;  N.  O.  Water  Co.  v.  La. 
Sugar  Co.  125  U.  S.  607;  Pollock  v.  Farmers'  L.  &  T.  Co.,  158  U.  S. 
601. 

49  126  Cal.  201. 


THE    FOURTEENTH     AMENDMENT. 

was  not  changed  until  the  decision  of  Shoobert  v.  DeMotta, 
1112  Cal.  215;  53  Am.  St.  R.  53,  in  1896,  and  in  the 
meantime  this  mortgage  was  made.  It  is  said  that  to 
apply  the  rule  declared  in  the  last  case,  rather  than  that 
laid  down  in  the  first,  would  be  to  impair  the  obligation  of 
contracts.  (Douglass  v.  County  of  Pike,  101  U.  S.  687.) 
In  the  case  named  it  is  said:  'After  a  statute  has  been 
settled  by  judicial  construction  the  construction  becomes, 
so  far  as  contract  rights  under  it  are  concerned,  as  much 
a  part  of  the  statute  as  the  text  itself,  and  a  change  of  the 
decision  is  to  all  intents  and  purposes  the  same  in  effect 
on  contracts  as  the  amendment  of  the  law  by  means  of  a 
legislative  enactment.'  No  rights  are  acquired  here  under 
a  statute  in  the  meaning  of  that  line  of  authorities,  which 
seem  to  refer  to  laws  authorizing  the  government  or  some 
sub-division  thereof  to  contract  certain  obligations.  Be- 
yond this  the  cases  cited  do  not  go.  I  hardly  think  the  rule 
would  be  applied  to  decisions  of  state  courts  in  regard 
to  general  rules  of  law,  although  they  may  affect  contract 
rights.  At  best,  they  but  lay  down  a  rule  for  the  federal 
courts  as  to  how  far  they  will  be  governed  by  decisions 
of  state  courts  in  the  construction  of  state  statutes.  Laws 
are  not  made  by  judicial  decisions.  The  court  simply 
determines  the  rights  of  the  parties  in  that  particular  con- 
troversy. 

Courts  have  never  thought  themselves  bound  by  it  as 
they  are  by  a  valid  statute.  2^o  doubt  an  appellate  court 
assumes  a  very  grave  responsibility  when  it  reverses  a 
former  decision  whcih  has  become  a  rule  property  or  the 
law  of  contracts,  and  whenever  this  is  done  it  must  be  un- 
derstood that  the  court  has  not  only  considered  the  ob- 


414  RIGHTS    AND    PRIVILEGES    UNDER 

jections  to  the  former  decision,  but  the  evil  which  may  fol- 
low from  its  reversal.  The  matter  is  ably  discussed  in  Hart 
v.  Burnett,  15  Cal.  530,  and  the  views  there  expressed 
have  been  frequently  affirmed.  The  mere  fact  that  an  er- 
ror has  been  made  in  a  decision  of  the  Supreme  Court  is 
no  reason  for  perpetuating  it,  but  in  a  given  case,  to  cor- 
rect it  may  be  productive  of  more  evil  than  to  permit 
it  to  stand.  And,  as  stated  in  the  above  case,  justice  is  not 
always  on  the  side  of  him  who  claims  under  the  erro- 
neous decision.  Why  should  one  who  has  honestly  acquired 
property  according  to  the  law  of  the  land  lose  it  because 
a  judge  relying  upon  imperfect  presentation,  has  erred? 
Why  should  the  policy  of  the  government,  adopted  upon 
great  deliberation,  be  so  defeated?  And  especially  so 
when  a  decision  was  never  deemed  to  have  the  force  of  ab- 
solute law?  If  the  Supreme  Court  of  the  United  States 
shall  finally  go  with  the  appellants  in  holding  that  the 
courts  are  prohibited  from  reversing  an  erroneous  con- 
struction of  a  state  statute  because  such  decision  is  a  law 
which  impairs  the  obligation  of  contracts,  then  the  courts 
can  never  change  the  erroneous  construction ;  for  a  court 
can  only  pass  upon  existing  rights,  and  must  always  look 
to  the  past  for  its  law,  and,  so  far  as  it  declares  the  law, 
it  declares  what  it  was  and  is,  but  can  not  enact  what  it 
shall  be.  I  do  not  think  that  august  tribunal  will  adopt 
this  view  which,  if  adopted,  can  result  only  in  the  perpet- 
uation of  error." 

In  Hart  v.  Burnett,50  beginning  at  page  597,  is  an  able 
discussion  of  the  doctrine  of  stare  decisis,  and  it  is  shown 

5015    Cal.    530. 


THE    FOURTEENTH     AMENDMENT.  415 

that  where  a  renunciation  of  erroneous  decisions,  though 
:  al  in  number,  and  though  they  concern  title  to  real 
estate,  will  promote  public  interest,  they  often  have  been, 
ought  to  be,  renounced. 

In  all  these  cases  in  the  Supreme  Court  it  is  required, 
in  order  to  apply  the  doctrine,  that  there  be  a  contract 
valid  under  the  state  law,  as  expounded  by  the  state  court 
at  its  date,  to  uphold  the  contract  over  the  subsequent 
decision.  I  do  not  understand  that  a  criminal  act  which 
would  not  be  a  crime  under  decisions  rendered  at  its  com- 
mission, could  not  be  prosecuted  as  a  crime  under  a  later 
decision  holding  it  to  be  a  crime.  Would  the  later  decision 
be  an  ex  post  facto  "law"  ?  It  can  not  be  meant  that  a  civil 
tort  not  such  when  done  under  decisions  then  existing 
would  not  be  an  actionable  tort  under  later  decisions  hold- 
ing it  to  be  such.  It  may,  too,  be  remarked  that  under  that 
clause  of  the  Constitution  denying  states  power  to  "make 
any  law  impairing  the  obligation  of  a  contract,"  it  is  set- 
tled that  to  come  under  that  clause  there  must  be  a  con- 
stitution or  statute,  and  that  a  judicial  decision  is  not  a 
"law"  within  its  meaning.51  It  was  not  intended  to  take 
away  from  the  judiciary  power  to  say  that  a  contract 
is  not  valid,  and  never  was ;  but  the  doctrine  of  Gelpcke 
v.  Dubuque  and  other  like  cases  makes  a  decision  of  a 
court  a  law.  I  can  not  see  when  the  question  is,  What  is 
a  'law"  ?  why  the  same  principle  does  not  apply,  whether 
it  is  a  law  to  impair  a  contract  or  an  overruled  decision. 
In  the  former  case  it  is  settled  that  a  decision  is  not  a 
"law." 

si  Central  Land  Co.  v.  Laidley,  159  U.  S.  p.  109;  N.  O.  Water  Co. 
V.  Sugar  Co.  125  U.  S.  18;  Brown  v.  Smart,  145  U.  S.  p.  458. 


416  RIGHTS    AND    PRIVILEGES    UNDER 

To  support  the  point  that  a  court  may,  by  overruling 
antecedent  decisions,  affect  rights  under  it,  see  Wood  v. 
Brady ,52holding  that  a  party  has  no  vested  right  in  a  for- 
mer decision  construing  a  statute  of  limitations.53  But 
contract  rights  seem  to  stand  good  against  impairment 
by  later  decisions.54 

State  Decisions. — It  must  be  said  that  the  question  when 
the  courts  will  follow  or  depart  from  state  decisions  up- 
on state  law  is  in  considerable  confusion  under  Supreme 
Court  decisions.  They  are  not  harmonious,  and  it  is  dif- 
ficult to  take  any  accurate,  secure  ground  on  the  subject. 
Still,  the  general  rule  may  be  stated  to  be  that  upon 
state  law,  where  no  questions  of  rights  conferred  by  the 
federal  Constitution,  laws  or  treaties  are  involved,  the 
federal  courts  will  follow  state  decisions. 

I  should  have  stated  before  that  another  exception 
to  the  rule  that  federal  courts  follow  state  decisions, 
is  that  stated  in  Burgess  v.  Seligman.55  aThe  courts 
of  the  United  States,  in  the  administration  of  state  laws 
in  cases  between  citizens  of  different  states,  have  an  inde- 
pendent jurisdiction  coordinate  with  state  courts,  and  are 
bound  to  exercise  their  own  judgment  as  to  the  meaning 
and  effect  of  those  laws."  The  reason  given  is  that  the 
original  grant  of  jurisdiction  to  federal  courts  where  the 
parties  live  in  different  states  would  do  the  non-resident 
no  good  if  the  federal  court  had  only  to  follow  the  state 
court. 

52  150  U.  S.  18. 

53  Wood  v.  Brady,   150  U.   S.   18. 

s*  Los  Angeles  v.  Los  Angeles,  177  U.  S.  558;  Folsom  v.  Ninety- 
six,  159  U.  S.  611;  Rondot  v.  Rogers,  99  Fed.  202  (C.  C.  A.)  ; 
Pleasant  Township  v.  Etna  L.  Ins.  Co.  138  U.  S.  67. 

55  107  U.  S.  20. 


THE    FOURTEENTH     AMENDMENT.  417 

Fellow  Servants — State  Decisions. — The  question  of 
whether  employees  are  fellow  servants,  so  as  to  preclude 
recovery  of  the  master  for  injury  to  one  employee  from 
the  negligence  of  another,  is  one  of  general  law,  and  fed- 
eral courts  will  not  follow  state  courts  as  to  that  sub- 
ject against  their  own  judgment.  Hunt  v.  Hurd  (C.  C. 
A.)  98  Fed.  683. 

State  Criminal  Decisions. — As  the  state  courts  have  sole 
jurisdiction  to  administer  state  criminal  laws,  so  their 
decision  as  to  their  validity  and  their  construction  by  the 
highest  state  courts  are  followed  by  federal  courts  when- 
ever they  are  called  upon  to  pass  upon  them,  almost 
infallibly,  more  uniformly  than  in  civil  cases.  The  Ju- 
diciary Act  of  1789  saying  that  in  trials  at  law  in  federal 
courts  the  laws  of  the  state  shall  be  rules  of  decision,  does 
not  apply  to  criminal  cases.56  But  the  federal  courts  have 
no  concurrent  jurisdiction  with  state  courts  in  criminal 
law  as  they  have  in  civil  cases,  but  state  courts  have  ex- 
clusive jurisdiction  in  enforcing  criminal  law  of  the  state, 
and  therefore  state  decisions  upon  its  criminal  law  are 
conclusive  on  the  federal  courts.57 

"When  a  prisoner  is  indicted  in  a  state  court  for  mur- 
der, it  is  for  the  courts  of  the  state  to  decide  whether  the 
indictment  sufficiently  charges  that  crime  in  the  first 
degree.  In  view  of  the  decisions  of  the  highest  court  of 
New  Jersey  declaring  the  meaning  and  scope  of  the  stat- 
utes of  that  state  under  which  the  accused  was  prosecuted, 
it  can  not  be  said  that  he  was  prosecuted  under  an  indict- 

56  U.  S.  «v.  Reid,  12  How.  361 ;  Bucher  v.  Cheshire  Co.  125  U.  S. 
555 ;  Logan  v.  U.  S.  144,  263,  300. 
'-'  New  York  v.  Eno,  155  U.  S.  89. 


418  RIGHTS    AND    PRIVILEGES    UNDER 

n?ent  based  on  statutes  denying  him  the  equal  protection 
of  the  law,  or  that  were  inconsistent  with  due  process  of 
law  as  prescribed  by  the  Fourteenth  Amendment."5 

A  form  of  indictment  prescribed  by  a  state  act  does  not 
violate  the  Fourteenth  Amendment.  It  is  for  the  state 
court  to  decide  upon  its  sufficiency.59  Decisions  of  the 
highest  court  of  a  state  as  to  amendment  of  the  record  in 
a  murder  case  are  final  and  due  process  of  law.60 

State  Rules  of  Evidence  are  Rules  of  Evidence  in  Fed- 
eral Courts  under  §34,  C.  20,  Act  1789,  in  civil  cases,  ex- 
cept where  the  Constitution,  laws  or  treaties  of  the  United 
States  otherwise  require  or  provide.61  The  decisions  cited 
were  under  the  old  act  of  1789.  A  later  act62  provides 
that  no  one  shall  be  excluded  as  a  witness  in  federal  courts 
on  account  of  color,  or  in  any  civil  case  because  he  is  a 
party  or  interested,  except  that  in  actions  by  or  against 
executors,  administrators  or  guardians  neither  party  shall 
be  allowed  to  testify  as  to  any  transaction  with  or  state- 
ment by  the  testator,  intestate  or  ward,  unless  called  by 
the  opposite  party  or  required  by  the  court,  and  then  says, 
"In  all  other  respects  the  laws  of  the  state  in  which  the 
court  is  held  shall  be  the  rule  of  decision  as  to  the  compe- 
tency of  witnesses  in  the  courts  of  the  United  States  in 
trials  at  common  law  and  in  equity  and  admiralty."  Thus, 
with  the  exception  of  the  instances  mentioned,  state  laws 
are  the  rules  of  decision  in  federal  courts  so  far  as  the  com- 

«8  Bergman  v.  Backer,  157  U.  S.  655. 
59  Caldwell  v.  Texas,  137  U.  S.  692. 
eoFielden  v.  Illinois,  143  U.  S.  452. 

ei  Ryan  v.  Brindley,  1  Wall.  66:  Potter  v.  Bank,  102  U.  S.  p.  165. 
«2  Revised  Stat.  Sec.  858;  2  Desty,  Sec.  375;  Logan  v.  U.  S.  144 
U.  S.  263. 


THE    FOURTEENTH     AMENDMENT.  419 

}>«  tency  of  witnesses  is  concerned.  The  Civil  Rights  Act63 
that  every  person  within  the  jurisdiction  of  the  United 
States  shall  have  the  right  to  "give  evidence,"  the  same  as 
white  persons.  It  is  not  supposed  that  this  forbids  the 
states  from  discriminating  as  to  competency  of  witnesses, 
so  they  do  not  exclude  merely  on  account  of  color,  anc| 
so  the  legislation  be  applicable  to  all  alike  of  a  class. 

«s  Revised  Stat.  Sec.  1977. 


420  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  19. 

FEDERAL    PEOCESSES    TO    ENFORCE 
AMENDMENT. 

.How  does  the  federal  judiciary  vindicate  the  rights 
protected  by  the  Fourteenth  Amendment  against  wrong- 
ful adverse  action  by  state  authority? 

We  may  here  premise  a  basic  principle  laid  down  by 
the  Supreme  Court  in  L'Hote  v.  N.  Orleans,  177  U.  S. 
587 :  "Until  there  is  some  invasion  of  congressional  power 
or  private  right  secured  by  the  Constitution  of  the  United 
States,  the  action  of  a  state  in  such  respect  is  beyond 
question  in  federal  courts."  This  important  principle 
must  be  always  regarded. 

Appeal  to  Supreme  Court  of  the  United  States If  it 

is  claimed  that  aright  protected  by  the  Fourteenth  Amend- 
ment has  been  denied  by  an  inferior  court  of  the  state, 
the  party  must  appeal  to  the  highest  state  court,  and  if 
that  court  decides  adversely  to  his  right  he  can  appeal  to 
the  Supreme  Court  of  the  United  States,  provided  the 
case  turns  on  the  constitutional  question;  for  if  the  case 
might  have  turned  on  another  question,  one  not  involv- 
ing a  right  claimed  as  protected  by  the  amendment,  not  a 
federal  question,  he  can  get  no  relief,  because  a  mere 


TUB    FOURTEENTH     AMENDMENT.  421 

erroneous  decision  by  a  state  court  upon  a  purely  state 
question,  one  not  involving  rights  under  federal  Consti- 
tution or  law,  does  not  give  right  to  appeal  to  the  United 
States  Supreme  Court.  The  state  court  must  decide  er- 
roneously on  that  constitutional  right  to  reverse  it,  and  ad- 
versely to  that  right.1  "The  conduct  of  a  criminal  trial 
in  a  state  court  can  not  be  reviewed  by  this  court,  un- 
less the  trial  is  had  under  some  statute  repugnant  to  the 
Constitution  of  the  United  States,  or  was  so  conducted  as 
to  deprive  the  accused  of  some  right  secured  to  him  by 
that  instrument.  Mere  error  in  administering  the  crim- 
inal law  of  the  state,  or  in  the  conduct  of  a  criminal 
trial — no  federal  right  being  invaded  or  denied — is  be- 
yond the  revisory  power  of  this  court  under  the  statutes 
regulating  its  jurisdiction.  Indeed,  it  would  not  be  com- 
petent for  Congress  to  confer  such  power  upon  this  or  any 
other  court  of  the  United  States."2 

So  as  to  civil  cases.  There  must  be  a  federal  question 
for  an  appeal  to  the  United  States  Supreme  Court.  The 
statute  says:  "A  final  judgment  or  decree  in  any  suit  in 
the  highest  court  of  a  state,  in  which  a  decision  in  the  suit 
could  be  had,  where  is  drawn  in  question  the  validity  of 
a  treaty  or  statute  of,  or  any  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  the  validity,  or 
where  is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under,  any  state  on  the  ground  of 
their  being  repugnant  to  the  Constitution,  treaties,  or  laws 

lEustis  v.  Bolles,  150  U.  S.  361;  Missouri,  etc.  Co.  v.  Fitzger- 
ald, 160  U.  S.  556;  N.  Orleans  v.  N.  O.  Waterworks,  142  U.  S.  79; 
Bacon  v.  Texas,  163  U.  S.  207;  Lowry  v.  Silver  City  Co.  179  U.  S. 
190,  21  Sup.  Ct.  104. 

2  Gibson  v.  Mississippi,  1G2  U.  S.  565;  Davis  v.  Texas,  139  U.  S. 
«51;  Illinois  C.  R.  Co.  v.  Adams  (Jan.  1901),  21  Sup.  Ct.  251; 
Vazoo  &  M.  V.  R.  Co.  v.  Adams,  21  Sup.  Ct.  256.  180  U.  S.  1. 


422  RIGHTS    AND    PRIVILEGES    UNDER 

of  the  United  States,  and  the  decision  is  in  favor  of  their 
validity,  or  where  any  title,  right,  privilege  or  immunity 
is  claimed  under  the  constitution,  or  any  treaty  or  statute 
of,  or  commission  held  or  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  the  title,  right, 
privilege  or  immunity,  specially  set  apart  or  claimed  by 
either  party,  under  such  constitution,  treaty,  statute,  com- 
mission or  authority,  may  be  re-examined,  reversed  or 
affirmed  in  the  Supreme  Court  upon  a  writ  of  error."3 

This  requires  no  amount  or  value  for  jurisdiction  by 
appeal  if  federal  question  exists. 

To  get  an  appeal  to  the  Supreme  Court  the  case  must 
fall  under  that  statute.  "To  give  this  court  jurisdiction 
of  a  writ  of  error  to  a  state  court,  it  must  affirmatively 
appear  not  only  that  a  federal  question  was  presented  for 
decision  by  the  state  court,  but  that  its  decision  was  neces- 
sary to  the  determination  of  the  caus^,  and  that  it  was  de- 
cided adversely  to  the  party  claiming  a  right  under  the 
federal  laws  or  constitution,  or  that  the  judgment  as  ren- 
dered could  not  have  been  rendered  without  deciding  it."4 

"It  must  appear  that  some  title,  right,  privilege  or  im- 
munity under  the  constitution  or  laws  of  the  United  States 
was  specially  set  up  or  claimed  there  (in  the  state  court), 
and  that  the  decision  of  the  highest  court  of  the  state  in 
which  a  decision  could  be  had,  was  against  the  right,  title, 
privilege  or  immunity  so  set  up  or  claimed."5 

3  Rev.  Stat.  Sec.  709. 

*  Eustis  v.  Bolles,  150  U.  S.  361 ;  Bacon  v.  Texas,  163  U.  S.  207. 

sSayward  v.  Denny,  158  U.  S.  180;  Scuyler  Bank  v.  Bollong,  150 
U.  S.  85;  Banholzer  v.  N.  Y.  Ins.  Co.  178  U.  S.  402;  Davis  v.  Burke, 
179  U.  S.  399;  21  Sup.  Ct.  210,  229;  Amer.  Sugar  Co.  v.  Louisiana, 
179  U.  S.  89,  21  Sup.  Ct.  43;  Loeb  v.  Trustees,  179  U.  S.  472,  21 
Sup.  Ct.  174;  Kizer  v.  Texarkana  Co.  179  U.  S.  199,  21  Sup.  Ct.  100. 


TUB     FOURTEENTH     AAIEXDMENT.  423 

But  this  federal  question  must  exist  in  the  record, — a 
mere  assertion  of  its  existence  not  being  sufficient,  but  the 
record  must  disclose  the  presence  of  such  question. 

"When  a  suit  does  not  really  and  substantially  involve 
a  .dispute  or  controversy  as  to  the  effect  or  construction  of 
the  Constitution  of  the  United  States,  upon  the  determ- 
ination of  which  the  result  depends,  there  is  not  a  suit 
arising  under  the  Constitution  of  the  United  States."  6 

When  it  appears  that  some  title,  right,  privilege  or  im- 
munity on  which  recovery  or  defense  depends,  will  be  de- 
feated by  one  construction  of  the  constitution  or  laws  of 
the  United  States,  or  sustained  by  the  opposite  construc- 
tion, the  case  is  one  arising  under  the  constitution  or  laws 
of  the  United  States;  otherwise  not.7 

The  suit  must  "arise  out  of  a  controversy  in  regard  to 
the  operation  and  effect  of  some  provision  of  the  Consti- 
tution of  the  United  States  upon  the  law  and  facts  in- 
volved.8 

By  the  Constitution,  act  of  Congress  and  decisions,  when 
a  right  under  the  Fourteenth  •  Amendment  is  denied  by 
the  decision  of  a  state  court  of  last  resort,  an  appeal  lies 
to  the  Supreme  Court  of  the  United  States.  If  the  federal 
question  really  arises,  is  involved  in  the  case — if  the  de- 
cision must  be  for  or  against  the  right  claimed  under  the 
amendment  in  order  to  decide  the  case,  and  if  that  is  the 
sole  pivotal  question,  and  the  state  decision  may  not  rest 

«X.  Orleans  v.  Benjamin,  153  U.  S.  411;  Lambert  v.  Barrett,  159 
U.  S.  660;  Western  Union  Tel.  Co.  v.  Ann  Arbor  R.  Co.  178  U.  S. 
239,  20  Sup.  Ct.  867;  Avery  v.  Popper,  179  U.  S.  305,  21  Sup.  Ct. 
94;  Yazoo  &  M.  V.  R.  Co.  v.  Adams,  180  U.  S.  1,  21  Sup.  Ct.  256. 

7  Starin  v.  New  York,  115  U.  S.  257. 

s  Goldwashing  Co.  v.  Keyes,  96  U.  S.  199.  See  Martin  v.  Hunter, 
1  Wheat.  304,  for  full  discussion  of  federal  jurisdiction.  See 
Amer.  Sugar  Co.  v.  Louisiana,  179  U.  S.  89,  21  Sup.  Ct.  43. 


424  RIGHTS    AND    PRIVILEGES    UNDER 

upon  another  question  that  is  of  purely  state  cognizance, 
such  appeal  to  the  Supreme  Court  of  the  United  States, 
by  writ  of  error,  lies,  only,  by  writ  of  error. 

Pretence  Jurisdiction. — A  party  can  not  go  in  any  way 
into  and  federal  court  simply  fraudulently  to  evade 
state  jurisdiction,  when  his  claim  of  "federal  question," 
that  is,  a  right  under  the  constitution  or  laws  of  the  United 
States,  is  not  real,  but  merely  colorable.9  "The  administra- 
tion of  justice  should  not  be  interfered  with  on  mere  pre- 
texts," and  a  suit  in  a  federal  court  of  original  jurisdic- 
tion or  appeal  on  frivolous  federal  questions  will  be  dis- 


missed.10 


United  States  Circuit  Courts. — -As  elsewhere  stated,  if  a 
party  be  deprived  of  life,  liberty  or  property  by  state  au- 
thority without  due  process,  or  denied  the  equal  protection 
of  the  law,  or  his  privileges  and  immunities  be  abridged, 
he  may  go  to  the  federal  circuit  court  for  relief.  But  can 
that  court  reverse  or  nullify  for  that  cause  a  decision  al- 
ready made  in  the  matter  by  any  state  court  ?  It  can  not 
by  appeal,  as  no  appeal  lies  to  such  circuit  court  from  a 
state  court.  It  can  not  act  by  injunction  to  the  state  court 
judgment,  as  the  act  of  Congress  prohibits  an  injunction 
from  a  federal  to  a  state  court,  except  in  a  proceeding  in 
bankruptcy. 1:t  The  circuit  court  can  not  reverse  in  any 
way.  "A  circuit  court  of  the  United  States  can  not  revise 
or  set  aside  the  final  decree  rendered  by  a  state  court  which 

aPittsburg  &  L.  A.  Co.  v.  Cleveland  Iron  Co.  178  U.  S.  270;  Ban- 
holzer  v.  N.  Y.  L.  Ins.  Co.  178  U.  S.  402;  Shreveport  v.  Cole,  129 
U.  S.  36;  New  Orleans  v.  Benjamin,  153  U.  S.  411. 

10  Lambert  v.  Barrett,   159  U.  S.  600. 

11  Rev.  Stat.  Sec.  720;  Haines  v.  Carpenter,  91  U.  S.  254. 


TUB    FOURTEENTH     AMENDMENT.  425 

had  complete  jurisdiction  of  the  parties  and  subject-mat- 
ter." 12 

Removal  of  Cause  from  State  to  Federal  Court  —  Another 
means  of  enforcing  the  Fourteenth  Amendment  is  by  re- 
moval of  a  suit  or  proceeding  from  a  state  court  to  a 
federal  court.  "Any  suit  of  a  civil  nature,  at  law  or  in 
equity,  arising  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made,  or  which  shall  be  made 
by  or  under  their  authority,  of  which  the  Circuit  Courts 
of  the  United  States  are  given  original  jurisdiction  by  the 
preceding  section,  which  may  be  now  pending,  or  which 
may  be  hereafter  brought,  in  any  state  court,  may  be  re- 
moved by  the  defendant  or  defendants  therein  to  the  Cir- 
cuit Court  of  the  United  States  for  the  proper  district."  ia 
The  amount  or  value  in  dispute  must  be  two  thousand 
dollars,  excluding  interest  and  costs,  as  that  is  necessary 
for  original  suit  in  the  Circuit  Court.  Any  civil  suit 
of  any  nature,  which  might  have  been  first  brought  in  the 
United  States  Circuit  Court,  may  be  removed.  Any  case 
arising  out  of  a  controversy  in  regard  to  the  operation 
and  effect  of  some  provision  of  the  federal  Constitution 
or  law  upon  the  facts  involved  mav  be  so  removed.14  But 
there  must  be  a  federal  question  if  there  is  no  diverse  cit- 
izenship. I  do  not  speak  of  that  as  a  ground  of  removal, 
but  only  of  a  question  under  the  federal  Constitution. 


v.  Clapp,  101  U.  S.  551;  Elder  v.  Richmond,  19  U.  S. 
App.  118,  58  Fed.  536;  Forsyth  v.  Hammond,  166  U.  S.  506;  Riggs 
v.  Johnson,  6  Wall.  195. 

is  Act  March  3,  1887,  24  U.  S.  Stat.  552,  amended  by  act  Aug. 
13,  1888,  25  U.  S.  Stat.  433. 

i*  Goldwashing  Co.  v.  Keyes,  96  U.  S.  199;  Mexican  Co.  v.  Dav- 
idson, 157  U.  S.  201;  Galveston,  etc.  v.  Texas,  170  U.  S.  226.  As 
to  amount  Re  Penn.  Co.  137  U.  S.  451. 


426  RIGHTS    AXD    PRIVILEGES    UXDER 

"A  case  (not  depending  on  the  citizenship  of  the  parties, 
nor  otherwise  specially  provided  for)  can  not  be  removed 
from  a  state  court  into  the  Circuit  Court  of  the  United 
States,  as  one  arising  under  the  Constitution,  laws  or 
treaties  of  the  United  States,  unless  that  appears  by  the 
plaintiff's  statement  of  his  own  claim."  15  But  if  the  an- 
swer sets  up  a  defense  or  right  under  the  Constitution,  the 
case  would  be  removable. 

There  is  a  federal  question  calling  for  removal  when- 
ever the  case  involves  the  question  of  a  right  under  the 
Fourteenth  Amendment,  and  calls  for  the  construction 
and  application  of  that  amendment.16  Whenever  a  con- 
stitutional or  federal  question  exists,  no  matter  about  cit- 
izenship.17 When  a  state  court  continues  to  hold  juris- 
diction after  petition  is  filed  for  removal,  its  wrongful 
action  in  the  case  further  is  to  be  corrected  by  a  writ  of 
error  or  appeal,  not  by  punishment  of  the  state  judge 
for  contempt.  But  after  application  for  removal  in  a 
proper  case, when  the  state  court  refuses  removal,  the  fed- 
eral court  at  once  gets  jurisdiction  and  can  proceed  with 
it  as  if  the  state  court  had  made  a  removal,18  and  there- 
after state  court's  action  is  void. 

A  late  case  holds  that  a  refusal  to  allow  a  foreign  cor- 
poration, which,  under  state  statute  allowing  it  to  do  so, 
has  become  a  domestic  corporation,  to  remove  a  cause  from 

is  Oregon,  etc.  v.  Skottow,  162  U.  S.  490,  495. 

is  Cohens  v.  Virginia,  6  Wheat.  379;  Kansas  Pac.  Co.  v.  Atchi- 
son,  etc.  Co.  112  U.  S.  416;  Amer.  Sugar  Co.  v.  Ix>uisiana,  179  U.  S. 
89. 

IT  Cohens  v.  Virginia,  6  Wheat.  379 ;  Kansas  Pac.  Co.  v.  Atchison, 
etc.  Co.  112  U.  S.  416. 

is  C.  &  O.  R.  R.  Co.  v.  White,  111  U.  S.  134;  Kern  v.  Huidekoper, 
103  U.  S.  485. 


THE    FOURTEENTH     AMENDMENT.  427 

a  state  court  to  a  federal  court,  does  not  abridge  the  priv- 
ileges and  immunities  of  a  citizen  of  the  United  States, 
or  deprive  it  of  property  without  due  process  of  law,  or 
of  equal  protection  under  the  Fourteenth  Amendment. 
It  held  that  a  foreign  corporation  so  becoming  domestic  t 
had  no  right  of  removel  when  sued  in  a  state  court  of 
Xorth  Carolina  by  a  citizen  thereof.19  If  the  federal 
court  quashes  the  indictment  removed  it  can  not  go  fur- 
ther, but  sends  the  accused  to  state  court  for  new  prose- 
cution.20 

Court  First  in  Possession  of  Case — Suppose  a  state  court 
has  lawful  first  possession  of  a  case,  and  the  party  takes 
a  notion  that  he  prefers  the  federal  forum.  Though  it 
is  a  case  which  might  have  been  originally  brought  in  a 
federal  court,  yet  having  begun  in  a  state  court,  that 
court  has  a  right  to  finish  it,  because  of  the  rule  that  be- 
tween courts  of  concurrent  jurisdiction  the  court  which 
first  obtains  possession  of  a  case  retains  it  to  the  end.21 
So  the  party  must  remove  his  case,  or  let  it  go  on  to  final 
judgment  in  the  state  court,  and  to  the  highest  state  court 
by  appeal,  and  then  go  to  the  United  States  Supreme  Court 
by  appeal.  He  can  not,  while  his  suit  is  pending  in  the 
state  court,  sue  in  the  United  States  Circuit  Court. 

Erroneous  State  Judgment,  though  it  do  involve  a  right 
under  the  federal  Constitution,  stands  good  until  reversed 

i»Debmam  v.  Southern  Bell  Tel.  Co.  36  S.  E.  269,  valuable  opin- 
ion. 

20  Bush  v.  Kentucky,  107  U.  S.  110. 

21  \Yard  v.  Todd,   103  U.  S.  327;   Central  Nat.  Bank  v.   Stevens, 
169  U.  S.  432,  459;  Harkrader  v.  Wadley,  172  U.  S.  148;  Parsons  v. 
Snider,  42  W.  Va.  517;  Oliver  v.  Parlin  &  Orendorf  Co.  105  Fed.  272. 


428  RIGHTS    AND    PRIVILEGES    UNDER 

as  res  judicata  in  federal  courts,  and  can  not  be  col- 
laterally assailed,  unless  void  for  want  of  jurisdiction.22 
Criminal  Cases. — Suppose  a  state  court  is  depriving  a 
man  of  life  or  liberty  contrary  to  the  Fourteenth  Amend- 
ment. How  does  the  federal  authority  intervene  ?  Here 
we  must  remember  that  the  full  police  power  is  left  with 
the  states  intact  from  the  Fourteenth  Amendment,  and 
this  police  power  included  the  power  to  make  and  enforce 
criminal  laws.23  Thus  the  states  have  full  and  absolute 
power  to  enact  and  execute  by  their  courts  laws 
for  the  breaking  of  their  peace.  For  the  ex- 
ercise of  the  functions  committed  by  the  states  to 
the  Union  it  can  enact,  under  its  police  power,  all 
needful  criminal  and  penal  laws,  and  has  done  so  in  a 
considerable  code  denouncing  punishment  upon  offenses 
against  coinage,  paper  money,  mail,  pensions,  internal 
revenue,  etc.  Federal  courts  execute  these  laws  exclu- 
sively, state  courts  having  no  authority  over  them;  nor 
have  the  criminal  laws  or  state  rules  of  evidence  any 
application  in  such  case.24  The  act  of  Congress  in  words 
says  that  the  "jurisdiction  vested  in  the  courts  of  the 
United  States  in  the  cases  hereinafter  mentioned  shall 
be  exclusive  of  the  courts  of  the  several  states  ...  of 
all  crimes  and  offenses  against  the  United  States."  Nor 
have  federal  courts  any  jurisdiction  to  punish  crime 
against  a  state.25 

22Forsyth  v.  Hammond,  166  U.  S.  506. 
23Barbier  v.  Connolly,  113  U.  S.  27. 

24Bucher  v.  Cheshire  Co.  125  U.  S.  555;  U.  S.  v.  Reid,  12  How. 
361;  Logan  v.  U.  S.  144  U.  S.  263. 
25  Pettibone  v.  U.  S.  148  U.  S.  209. 


THE    FOURTEENTH     AMENDMENT.  429 

"By  the  Fourteenth  Amendment  the  powers  of  the 
states  in  dealing  with  crimes  within  their  borders  are 
not  limited,  except  that  no  state  can  deprive  particular 
persons,  or  classes  of  persons,  of  equal  and  impartial 
justice  under  the  law;  that  the  law  in  its  regular  course 
of  administration  through  courts  of  justice  is  due  pro- 
cess, and  when  secured  by  the  law  of  the  state,  the  con- 
stitutional requirement  is  satisfied;  and  the  due  process 
is  so  secured  by  laws  operating  on  all  alike,  and  not  sub- 
jecting the  individual  to  the  arbitrary  exercise,  of  the 
powers  of  government  unrestrained  by  the  established 
principles  of  private  right  and  distributive  justice."  6 

"When  a  state  court  has  entered  upon  the  trial  of  a 
criminal  case,  under  a  statute  not  repugnant  to  the  Con- 
stitution of  the  United  States,  and  has  jurisdiction  of 
the  offense  and  of  the  accused,  mere  error  in  the  conduct 
of  the  trial  can  not  be  made  the  basis  of  jurisdiction  in 
a  court  of  the  United  States  to  review  the  proceedings 
upon  a  writ  of  habeas  corpus."  "The  repugnancy  of  the 
state  statute  to  the  state  constitution  will  not  authorize 
a  writ  of  habeas  corpus  from  a  court  of  the  United 
States,  unless  the  prisoner  is  in  custody  under  that  stat- 
ute, and  unless  also  the  statute  is  repugnant  to  the  Con- 
stitution of  the  United  States."27 

"The  question  whether  the  evidence  in  the  case  was 
sufficient  to  justify  the  verdict,  and  the  question  whether 
the  constitution  of  Kansas  was  complied  with  or  not, 

v.  Texas,  139  U.  S.  462;  Arrowsmith  v.  Harmoning,  118 


U.  S.  194. 

27  Andrews  v.  Swartz,  156  U.  S.  272;  HarKrader  v.  Wadley,  172 
148. 


430  RIGHTS    AND    PRIVILEGES    UNDER 

in  certain  proceedings  on  the  trial,  were  not  federal 
questions  which  this  court  could  review."  28 

aWhen  a  trial  court  of  a  state  has  jurisdiction  and 
power,  under  state  law,  to  determine  the  law  applicable 
to  the  case  of  an  indictment  and  trial  for  murder,  and  the 
prisoner,  when  convicted,  has  an  appeal  to  an  appellate 
court  of  the  state,  of  which  he  avails  himself,  the  Cir- 
cuit Court  of  the  United  States,  if  applied  to  for  a  writ 
of  habeas  corpus  upon  the  ground  that  the  proceedings 
are  in  violation  of  provisions  of  the  Constitution  of  the 
United  States,  may  properly  decline  to  interfere." 

The  Supreme  Court  of  the  United  States  can  not  re- 
view the  judgment  of  the  highest  state  court  in  a  mur- 
der case  ain  the  absence  of  a  federal  question  giving  this 
court  jurisdiction.  The  question  sought  to  be  presented 
as  federal  questions  are  entirely  within  the  exercise  of 
the  powers  of  the  state,  and  this  court  has  no  jurisdiction 
of  them."  30  Touching  the  finality  of  state  decisions  in 
criminal  cases  I  refer  back  to  what  is  said  on  page  (417) 
as  pertinent  here. 

But  suppose  a  state  tribunal  is  entertaining  a  prose- 
cution, and  the  prisoner  is  being  deprived  of  life  or  lib- 
erty without  due  process  of  law.  Does  he  have  to  go 
through  the  trial  and  appeal  to  the  state's  highest  court, 
and  thence  to  the  United  States  Supreme  Court?  Is 
there  no  process  by  which  he  can  set  himself  free  by  at 
once  bringing  his  case  before  the  federal  court,  and  there 
testing  the  question  whether  he  is  being  deprived  of  life 
or  liberty  without  due  process  ? 

28  Baldwin  v.  Kansas,  129  U.  S.  52. 

2»  In  re  Duncan,  139  U.  S.  449. 

so  Davis  v.  Texas,  139  U.  S.  651;  Davis  v.  Burke,  179  U.  S.  399, 
21  Sup.  Ct.  210;  Amer.  Sugar  Co.  v.  Louisiana,  179  U.  S.  89,  21 
Sup.  Ct.  43. 


TH&    FOURTEENTH     AMENDMENT.  431 

No  Injunction  against  State  Prosecution. — The  Circuit 
Court  of  Virginia  awarded  an  injunction  against  a 
state  court  restraining  it  from  prosecuting  a  man  for  em- 
bezzlement under  state  law;  but  the  United  States  Su- 
]>ivme  Court  held  that  "A  Circuit  Court  of  the  United 
States,  sitting  in  equity  in  the  administration  of  civil 
remedies,  has  no  jurisdiction  to  stay  by  injunction  pro- 
ceedings pending  in  a  state  court  in  the  name  of  the  state 
to  enforce  the  criminal  laws  of  such  state."  31 

A  federal  statute  forbids  an  injunction  from  a  federal 
to  a  state  court,  except  in  bankruptcy  cases,  and  except 
to  protect  its  own  jurisdiction  in  a  case  already  in  it 
before  commencement  of  a  suit  about  the  same  matter 
in  a  state  court.32 

si  Harkrader  v.  Wadley,  172  U.  S.  148. 

32  U.  S.  v.  Parkhurst-Davis  Co.  176  U.  S.  317;  Iron  Mountain 
R.  Co.  v.  City  of  Memphis,  96  F.  113. 


432  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  20. 


HABEAS  COEPUS. 

This  great  writ  of  liberty,  the  Habeas  Corpus,  belong- 
ing to  all  common  law  courts  under  their  original  ju- 
risdiction, once  had  narrow  office  in  the  federal  judi- 
ciary. Under  the  Act  of  1789  it  could  not  reach  pris- 
oners held  under  state  authority.  In  1832,  when  nul- 
lification of  federal  revenue  laws  was  threatened  or  ex- 
isted in  South  Carolina,  and  federal  officers  were  prose- 
cuted there  in  state  courts  for  acting  under  those  laws, 
Congress  extended  the  writ  of  habeas  corpus  for  the  res- 
cue of  persons  confined  under  state  authority  for  acts 
done  as  federal  officers.  In  1842  the  writ  was  extended 
to  those  in  custody  for  acts  d6ne  under  color  of  authority 
of  a  foreign  country,  in  order  to  thus  vindicate  the  rights 
of  a  foreign  country  under  the  law  of  nations.  In  1867 
the  writ  of  habeas  corpus  in  federal  courts  was  extended 
to  all  persons  restrained  of  liberty  in  violation  of  the 
Constitution,  laws  or  treaties  of  the  United  States.  Af- 
ter this  act  Chief-Justice  Chase  said  in  Ex  parte  Mc- 
Ardle : 1  "This  legislation  is  of  the  most  comprehensive 
character.  It  brings  within  the  habeas  corpus  jurisdic- 

i  6  Wall.  318. 


THB    FOURTEENTH     AMENDMENT.  433 

tion  of  every  court  and  every  judge  every  possible  case 
of  privation  of  liberty  contrary  to  national  Constitution, 
law  or  treaty.  It  is  impossible  to  widen  its  jurisdiction. 
It  is  to  this  jurisdiction  that  the  system  of  appeals  is 
applied." 

.V  person  undergoing  prosecution  in  a  state  court  for 
a  state  crime,  who  claims  that  he  is  being  deprived  of 
right  contrary  to  the  Fourteenth  Amendment,  may,  un- 
der circumstances  in  exceptional  cases,  be  rescued  from 
state  grasp  and  custody  by  a  writ  of  habeas  corpus  from 
a  federal  court.  It  will  be  at  once  realized  that  this  is 
a  very  grave  and  delicate  power  to  be  exercised  by  the 
national  judiciary,  ought  to  be  so  regarded  by  it,  and 
is  rarely  resorted  to.  The  expressions  of  the  Supreme 
Court  are  full  of  caution  to  the  subordinate  courts  upon 
the  subject.  It  is  a  direct  attack  upon  the  authority  of 
a  state,  indeed  upon  its  dignity  and  honor,  as  it  assumes 
that  the  state  tribunals  will  not  accord  to  the  prisoner 
his  just  defense  under  the  Constitution  of  his  country, 
and,  as  just  stated,  the  Supreme  Court  has  warned  in- 
ferior federal  courts,  with  emphasis,  to  be  slow  and  chary 
in  the  exercise  of  their  jurisdiction  by  habeas  corpus 
in  such  cases.  Still,  the  power  has,  in  definite  terms, 
been  frequently  declared  to  exist.  The  act  of  Congress 
is  broad:2  "The  Supreme  Court  and  the  circuit  and  dis- 
trict courts  shall  have  power  to  issue  writs  of  habeas 
corpus."  Another  section 3  restricts  the  writ  to  certain 
cases,  among  them  cases  where  the  person  is  in  custody 

2  Rev.  Stat.  Sec.  751. 
s  Sec.  753,  Rev.  Stat. 


434  RIGHTS    AND    PRIVILEGES    UNDER 

"in  violation  of  the  Constitution,  or  of  a  law  or  treaty 
of  the  United  States." 

"When  a  state  court  has  jurisdiction  of  the  offense 
and  the  accused  under  an  indictment  found  under  a 
statute  of  a  state,  not  void  under  the  Constitution  of  the 
United  States,  and  proceeds  to  judgment  under  that 
statute,  a  circuit  court  of  the  United  States  has  no  au- 
thority to  interfere  with  the  execution  of  the  sentence 
by  writ  of  habeas  corpus.  The  refusal  by  a  state  court 
to  grant  a  writ  of  error  to  a  person  convicted  of  murder, 
§or  to  stay  the  execution  of  the  sentence,  will  not  warrant 
a  court  of  the  United  States  in  interfering  in  his  be- 
half by  writ  of  habeas  corpus."4 

A  writ  of  habeas  corpus  is  a  civil  proceeding,  but  not 
a  writ  of  error  to  correct  error  in  a  criminal  prosecu- 
tion; that  must  be  done  by  an  appellate  process.  But 
where  the  judgment  is  utterly  void,  if  in  a  state  court, 
or  though  not  void  if  in  a  federal  court,  but  the  statute 
under  which  the  prosecution  is  going  on  is  contrary  to 
the  federal  Constitution,  or  the  party  is  denied  essential 
equality  before  the  law,  it  lies,  but  not  to  correct  mere 
error,  however  gross.5 

"When  a  prisoner  convicted  of  crime  in  a  state  court, 
and  sentenced  there  to  a  punishment,  complains  that  his 
rights  under  the  Constitution  or  laws  of  the  United  States 
have  been  thereby  violated,  he  may  seek  relief  in  the  fed- 
eral courts  by  application  to  either  the  proper  circuit 
court  for  a  writ  of  habeas  corpus,  or  to  a  justice  of  this 
court  for  a  writ  of  error  to  the  state  court.  The  remedy 

*  Bergman  v.  Backer,  157  U.  S.  655;  Gusman  v.  Marrero,  180 
U.  S.  81,  21  Sup.  Ct.  293. 

5  In  re  Swan,  150  U.  S.  648;  In  re  Duncan,  139  U.  S.  449;  Eaton 
v.  West  Virginia,  91  Fed.  760. 


THE    FOURTEENTH     AMENDMENT.  435 

by  habeas  corpus  should  be  limited  to  cases  in  which 
the  judgment  or  sentence  attacked  is  clearly  void  by 
reason  of  its  having  been  rendered  without  jurisdiction, 
or  by  reason  of  the  court's  having  exceeded  its  jurisdic- 
tion in  the  premises ;  and  the  general  rule  and  better  prac- 
tice, in  the  absence  of  special  facts  and  circumstances, 
is  to  require  the  prisoner  to  seek  a  review  by  writ  of  error, 
instead  of  resorting  to  a  writ  of  habeas  corpus."  6  The 
writ  of  error  here  meant  is  one  from  a  state  court  to  the 
United  States  Supreme  Court.  So  the  party  must  first 
go  to  the  highest  state  court. 

In  Xew  York  v.  Eno7  the  holding  is  that  whether  an 
offense  charged  in  an  indictment  is  one  against  the  state  or 
against  the  nation,  and  exclusively  punishable  in  the  na- 
tional courts,  or  against  both,  is  a  question  for  a  state 
court  of  original  jurisdiction  (its  duty  to  render  such  de- 
cision as  will  give  effect  to  the  supreme  law  being  the 
same  as  that  resting  on  the  courts  of  the  Union),  and  the 
federal  courts  should  decline  to  issue  a  habeas  corpus,  un- 
less the  case  is  one  of  real  urgency.  "The  proper  time, 
in  such  case,  to  apply  for  such  writ  to  this  court  is  after 
the  claim  to  immunity  from  prosecution  in  the  state  court 
has  been  passed  on  adversely  to  him  by  the  highest  court 
of  the  state." 

In  the  leading  case  upon  the  subject  Ex  parte  Royall,8 
it  was  held:  "Circuit  courts  of  the  United  States  have 
jurisdiction  on  habeas  corpus  to  discharge  from  custody 
a  person  restrained  of  his  liberty  in  violation  of  the  Con- 

« In  re  Frederich,  149  U.  S.  70. 
•  loo  U.  S.  89. 
s  117  U.  S.  241. 


436  RIGHTS    AND    PRIVILEGES    UNDER 

stitution  of  the  United  States,  but  who  at  the  time  is  held 
under  state  process  for  trial  on  an  indictment  charging 
him  with  an  offense  against  the  laws  of  the  state.  When 
a  person  is  in  custody  under  process  from  a  state  court 
of  original  jurisdiction  for  an  alleged  offense  against  the 
laws  of  such  state,  and  it  is  claimed  that  he  is  restrained 
of  his  liberty  in  violation  of  the  Constitution  of  the 
United  States,  the  Circuit  Court  of  the  United  States  has 
a  discretion  whether  it  will  discharge  him  in  advance  of 
his  trial  in  the  court  in  which  he  is  indicted;  but  this 
discretion  should  be  subordinated  to  any  special  circum- 
stances requiring  immediate  action.  After  conviction  in 
the  state  court  the  circuit  court  has  still  a  discretion 
whether  he  shall  be  put  to  his  writ  of  error  to  the  highest 
court  of  the  state,  or  whether  it  will  proceed  by  writ  of 
habeas  corpus  summarily  to  determine  whether  he  is  re- 
strained of  his  liberty  in  violation  of  the  Constitution  of 
the  United  States." 

In  a  later  case,  Whitten  v.  Tomlinson,9  the  decision  is : 
"Under  Section  753  of  Revised  Statutes  the  courts  of  the 
United  States  have  power  to  grant  writs  of  habeas  corpus, 
for  the  purpose  of  inquiring  into  the  cause  of  restraint  of 
liberty  of  any  person  in  jail,  in  custody  under  authority 
of  a  state,  in  violation  of  the  Constitution  of  the  United 
States,  or  a  law  or  treaty  of  the  United  States;  but,  ex- 
cept in  cases  of  peculiar  urgency,  will  not  discharge  the 
prisoner  in  advance  of  a  final  determination  of  his  case 
in  the  courts  of  the  state ;  and  even  after  determination  in 
those  courts,  will  generally  leave  the  petitioner  to  his  rem- 

9  160  U.  S.  231. 


THE    FOURTEENTH     AMENDMENT.  437 

edy  l.y  writ  of  error  from  this  court."  The  court  strongly 
emphasized  the  wisdom  of  not  discharging  in  advance  of 
the  action  of  the  state  court,  saying:  "To  adopt  a  different 
rule  would  unduly  interfere  with  the  exercise  of  the 
criminal  jurisdiction  of  the  several  states,  and  with  the 
performance  by  this  court  of  its  appropriate  duties." 

In  Ex  parte  Koyall10  the  court,  speaking  by  Mr. 
Justice  Gray,  of  the  act  of  Congress  providing  that  fed- 
eral courts  and  judges  in  cases  of  persons  in  custody  "in 
violation  of  the  Constitution,  or  laws  or  treaty  of  the 
United  States  shall  forthwith  award  a  writ  of  habeas 
corpus,  unless  it  appear  from  the  petition  that  a  party  is 
not  entitled  thereto,"  and  providing  for  summary  hearing, 
said:  "We  can  not  suppose  that  Congress  intended  to 
compel  those  courts,  by  such  means,  to  draw  into  them, 
in  the  first  instance,  the  control  of  all  criminal  prosecu- 
tions commenced  in  state  courts  exercising  authority  with- 
in the  same  territorial  limits,  where  the  accused  claims 
that  he  is  held  in  custody  in  violation  of  the  Constitution 
of  the  United  States.  The  injunction  to  hear  the  case 
summarily,  and  'thereupon  dispose  of  the  party  as  law  and 
justice  may  require/  does  not  deprive  the  court  of  discre- 
tion as  to  the  time  and  mode  in  which  it  will  exert  the 
powers  conferred  upon  it.  That  discretion  should  be  ex- 
ercised in  the  light  of  the  relations  existing,  under  our 
system  of  government,  between  the  judicial  tribunals  of 
the  Union  and  the  states,  and  in  recognition  of  the  fact 
that  the  public  good  requires  that  those  relations  be  not 
disturbed  by  unnecessary  conflict  between  courts  equally 

10117  U.  S.  241. 


438  RIGHTS    AND    PRIVILEGES    UNDER 

bound  to  guard  and  protect  rights  secured  by  the  Con- 
stitution." 

A  petition  for  habeas  corpus  showed  a  conviction  of 
felony  in  a  state  court,  for  embezzlement  of  funds  of  a 
national  bank,  alleged  to  be  in  violation  of  the  federal 
Constitution,  but  for  the  reason  that  it  showed  no  reason 
why  the  parties  could  not  have  a  review  in  the  state 
supreme  court,  or  why  it  should  not  be  allowed  to  review 
without  interference  by  the  federal  court,  the  habeas 
corpus  was  refused.11 

A  party  sought  a  habeas  corpus  because  he  was  con- 
victed of  murder,  when  no  person  of  his  race,  African, 
was  on  the  grand  or  petit  jury,  though  the  state  law  did 
not  exclude  persons  of  color  therefrom.  It  was  held  that 
he  must  make  the  point  in  the  state  court,  and  then  go  to 
the  state's  highest  court,  and,  failing  to  do  so,  could  have 
no  federal  writ  of  habeas  corpus.  "It  was  not  intended 
by  Congress  that  circuit  courts  of  the  United  States 
should,  by  writs  of  habeas  corpus,  obstruct  the  ordinary 
administration  of  the  criminal  law  of  the  state  through 
its  own  tribunals."  12 

A  party  was,  by  violence,  seized  in  one  state  and  car- 
r;ed  to  another,  where  a  prosecution  was  pending 
against  him.  He  sought  a  federal  habeas  corpus.  The 
court  held  that  what  effect  such  seizure  would  have  was 
as  much  within  the  province  of  the  state  court  as  a  ques- 
tion of  common  law  or  law  of  nations,  as  within  the 
province  of  federal  courts,  and  the  writ  was  refused,  and 
the  case  of  Ex  parte  Eoyall  reaffirmed.13 

11  Ex  parte  Fonda,   117  U.  S.  516. 

12  ln  re  Wood,  140  U.  S.  278;   Pepke  v.  Cronon,   155  U.   S.   100. 
is  Cook  v.  Hart,  146  U.  S.  183.     So  Ex  parte  Glenn,  103  Fed.  047. 


TUB    FOURTEENTH     AMENDMENT.  439 

The  mere  general  statement  in  a  petition  for  habeas 
corpus  that  a  petitioner  is  detained  in  violation  of  the 
Constitution  and  laws  of  the  United  States  is  an  averment 
of  mere  conclusion  of  law,  not  matter  of  fact.  It  must 
be  shown  wherein  his  detention  is  without  due  process.14 

Federal  Question. — But  to  get  a  federal  writ  of -habeas 
corpus  the  case  must  present  a  federal  question.  For  in- 
stance, it  was  denied  where  it  was  sought  by  the  father 
of  a  child  to  obtain  possession  of  it  from  its  grandparents. 
Xo  question  of  restraint  of  liberty  contrary  to  the  federal 
Constitution  was  involved.  A  federal  writ  of  habeas 
corpus,  like  all  other  federal  process,  must  have  a  federal 
question  for  its  basis.15 

No  State  Habeas  Corpus  for  Federal  Prisoners. — Though 
once  claimed  by  state  courts,  it  is  now  settled  that  a  state 
court  has  no  power  to  issue  a  writ  of  habeas  corpus  to  dis- 
charge a  prisoner  in  federal  custody.16  So  he  be  in  cus- 
tody under  authority,  or  color  of  authority,  civil  or  mil- 
itary, of  the  United  States,  there  can  be  no  state  habeas 
corpus.17 

State  Criminal  Jurisdiction  Over  Federal  Officers. — Here 
sometimes  arises  an  extremely  delicate,  sensitive  question 
between  federal  and  state  authority,  as  has  several  times 
occurred.  The  police  power  of  the  state,  broad  as  it  is, 
must  not  infringe  on  the  exercise  of  necessary  powers  of 
the  federal  government ;  for  to  allow  this  would,  or  might, 
disable  it  from  performing  efficiently  the  functions  as- 

"Whitten  v.  Tomlinson,  160  U.  S.  242;  Cuddy  Case,  131  U.  S. 
280,  286. 

is  In  re  Burris,  136  U.  S.  586. 
isAbleman  v.  Booth,  21  How.  506. 
iTTarbell's  Case,  13  Wall.  397, 


440  RIGHTS    AND    PRIVILEGES    UNDER 

signed  to  it.  Therefore  the  criminal  law  of  the  state 
can  not  apply  to  any  person  who,  as  an  officer  or  agent 
of  the  national  government,  does  an  act  as  such,  by  color 
of  his  office.  If  his  act  is  one  aside  from  his  office,  not 
in  colorable  execution  of,  but  really  foreign  to  it,  he  is 
answerable  to  the  state  criminal  code  as  anyone  else;  but 
in  acting  as  an  officer,  though  if  he  were  not  such  the  act 
would  be  an  offense  against  the  state,  it  is  not  such  offense, 
it  being  done  as  such  officer. 

Davis  was  indicted  for  murder  in  Tennessee,  but  the 
act  having  been  done  in  self-defense  while  acting  as  an 
internal  revenue  collector,  the  case  was  removed  to  the 
federal  court  for  trial.18  The  court  said:  aThe  United 
States  is  a  government  with  authority  extending  over  the 
whole  territory  of  the  Union,  acting  upon  the  states  and 
the  people  of  the  states.  While  limited  in  the  number 
of  its  powers,  it  is,  so  far  as  its  sovereignty  extends,  su- 
preme. No  state  can  exclude  it  from  exercising  them, 
obstruct  its  authorized  officers  against  its  will,  or  with- 
hold from  it,  for  a  moment,  the  cognizance  of  any  subject 
which  the  Constitution  has  committed  to  it.  The  general 
government  must  cease  to  exist  whenever  it  can  not  en- 
force the  exercise  of  its  constitutional  powers  within  the 
states  by  its  officers  and  agents.  If,  when  thus  acting, 
within  the  scope  of  their  authority,  they  can  be  arrested 
and  brought  to  trial  in  a  state  court,  for  an  alleged  offense 
against  state  law,  yet  warranted  by  the  federal  authority 
they  possess,  and  if  the  general  government  is  powerless 
to  interfere  at  once  for  their  protection —  if  their  pro- 
is  Tennessee  v.  Davis,  100  U.  S.  257. 


THE    FOURTEENTH     AMENDMENT.  44! 

tection  must  be  left  to  the  action  of  the  state  court — the 
operations  of  the  general  government  may  at  any  time  be 
arrested  at  the  will  of  the  state.  Xo  such  weakness  is  to 
be  found  in  the  Constitution."  Removal  at  once  from 
the  state  to  the  federal  court  was  justified.  It  was  said 
that  though  after  trial  and  affirmance  of  the  conviction 
in  the  state  courts,  there  might  be  a  writ  of  error  to  the 
Supreme  Court  of  the  United  States,  that  might  be  so 
slow  as  to  disable  the  officer  from  acting,  and  thus  prej- 
udice the  federal  government  in  the  administration  of  its 
duties;  that  the  material  consideration  was  not  the  indi- 
vidual right  of  the  officer,  but  the  public  administration. 

In  In  re  Loney19  a  person  was  arrested  in  Virginia 
for  perjury  in  depositions  in  a  contested  election  for  a 
member  of  Congress,  and  a  writ  of  habeas  corpus  issued 
from  a  federal  court,  and  the  Supreme  Court  held  that  the 
"courts  of  a  state  have  no  jurisdiction  of  a  complaint  for 
perjury  in  testifying  before  a  notary  of  the  state  upon  a 
contested  electon  for  the  House  of  Representatives  of  the 
United  States ;  and  a  person  arrested  on  such  complaint 
will  be  discharged  on  habeas  corpus." 

In  In  re  Nagle20  a  deputy  marshal  was  in  custody  of 
a  sheriff  in  California  charged  with  murder.  He  had 
killed  Terry  while  Terry  was  assaulting  Justice  Field 
on  his  way  to  hold  a  federal  court.  The  Supreme  Court 
held  that  ^N"agle  was  lawfully  released  by  the  federal  court 
in  California  from  state  custody,  as  he  as  marshal  had 
the  same  power  to  keep  the  peace  as  a  state  sheriff,  and 
was  properly  acting  in  defending  the  judge's  life,  and 

19134  U.   S.   372. 
20  135  U.  S.   1. 


442  RIGHTS    AND    PRIVILEGES    UNDER 

acted  as  a  marshal,  and  was  not  subject  to  state  criminal 
law. 

In  In  re  Waite  21  is  an  able  opinion  justifying  a  habeas 
corpus  to  release  from  custody  a  pension  officer  of  the 
United  States  who  had  been  convicted  by  an  Iowa  court, 
and  his  sentence  affirmed  by  the  Supreme  Court  of  Iowa, 
for  an  act  done  by  color  of  his  office. 

In  Ohio  v.  Thomas22  an  officer  in  a  soldiers'  home  was 
arrested  for  a  violation  of  state  law  in  furnishing  oleo- 
margarine to  inmates  of  a  government  institution,  a  sol- 
diers' home,  and  he  was  discharged  on  habeas  corpus. 
The  court  held  that  the  state  law  had  no  application  to  the 
act  done,  as  it  was  in  virtue  of  federal  authority. 

In  Tennessee  v.  Davis  2a  a  general  statement  of  the 
respective  powers  of  state  and  nation  as  to  police  is  made. 
"Acts  of  Congress  can  not  properly  supersede  police 
powers  of  the  state,  nor  can  the  police  powers  of  the  state 
override  national  authority,  as  the  powers  of  the  state  in 
that  regard  extend  only  to  a  just  regulation  of  rights  with 
a  view  to  due  protection  and  enjoyment  of  all ;  and  if  the 
police  law  of  the  state  does  not  deprive  anyone  of  that 
which  is  justly  and  properly  his  own;  it  is  obvious  that 
its  possession  by  the  state  and  its  exercise  for  the  regu- 
lation of  the  actions  of  their  citizens  can  never  constitute 
an  invasion  of  national  jurisdiction,  or  afford  a  basis  for 
an  appeal  to  the  protection  of  the  national  authorities." 

In  Boske  v.  Comingore24  it  was  held  that  the  district 

2i81  Fed.  359. 

22  173  U.  S.  276. 

23  100  U.  S.  301. 

24  177  U.  S.  459,  20  Sup.  Ct.  701. 


TUB    FOURTEENTH     AMENDMENT.  443 

court  could,  on  habeas  corpus,  direct  the  discharge  of  an 
officer  of  internal  revenue  service  held  in  custody  by  the 
state,  on  the  ground  that  his  presence  was  necessary  in 
discharge  of  his  public  duties,  without  waiting  for  the 
regular  course  in  the  state  courts,  and  it  was  treated  as 
an  exception  to  the  rule  laid  down  in  Ex  parte  Royall. 
There  is  much  strength  in  this  reasoning  to  sustain  fed- 
eral supremacy  over  states  in  giving  immunity  against 
state  action  to  federal  officers  for  acts  done  as  such;  but 
the  argument  is  not  all  on  one  side.  Who  is  to  say 
whether  a  federal  officer  acted  really  by  virtue  of  his 
office  ?  The  federal  courts  say  that  they  only  are  to  de- 
cide this  question.  But  if  the  officer  did  not  so  act,  the 
state  law  is  violated,  and  ought  not  the  state  to  punish 
it?  If  any  district  or  circuit  court  can  any  moment  ar- 
rest the  hands  of  the  state,  take  from  it  a  breaker  of  its 
laws,  there  is  no  end  to  the  interruption,  the  harassment  to 
state  administration.  Why  not  let  the  state  go  on?  If 
a  party  acted  really  as  an  officer,  his  defense  will,  presum- 
ably, be  accorded  due  weight;  if  he  did  not  so  act  he  is 
and  ought  to  be  punished.  Shall  we  assume  in  advance 
that  the  state  will  deny  him  his  just  defense.  If  it  does 
so,  there  is  an  appeal  to  the  Supreme  Court.  Shall  there 
be  in  the  state  two  or  more  federal  courts  to  veto  the  state 
power  ?  This  would  detract  from  the  dignity  and  capacity 
of  the  states.  There  is  no  sovereignty  in  a  state  in.  this 
matter.  If  it  be  said  that  there  may  be  delay,  that  can 
equally  be  said  in  all  other  cases.  And  the  state  officer 
does  not  enjoy  this  immunity;  for  even  a  state  judge 
acting  as  such  in  the  selection  of  jurors  is  indictable  for 
wrongfully  excluding  colored  jurors  in  violation  of  the 


444  RIGHTS    AND    PRIVILEGES    UXDER 

Civil  Rights  Act.  But  it  was  claimed  that  he  was  ex- 
ercising a  merely  ministerial  function,  not  a  judicial 
one,  and  it  was  not  claimed  that  the  federal  govern- 
ment could  indict  a  state  judge  for  the  exercise  of  a  judi- 
cial act.25  But  the  question  remains,  Who  is  to  say 
whether  the  act  is  judicial  ?  The  clear-cut  fact  is  that  the 
state  officer  is  prosecuted  in  the  federal  court  for  an  act 
claimed  to  be  done  in  the  exercise  of  his  judgment  as  a 
state  officer.  Did  the  Fourteenth  Amendment  intend  to 
confer  on  the  federal  government  power  to  prosecute  for 
crime  persons  colorably  exercising  state  function  ?  Before 
that  amendment  it  seems  that  it  could  not  do  so.  In  Ken- 
tucky v.  Dennison26  a  unanimous  court  held  that  though 
the  federal  Constitution  made  it  the  "duty"  of  one  state 
to  surrender  fugitives  from  justice  it  was  merely  a  moral 
duty,  and  Congress  could  not  coerce  its  performance  by 
a  governor — could  not  enforce  it  upon  the  state  by  oper- 
ating upon  the  officer.  But  it  is  held  in  Ex  parte  Vir- 
ginia, just  cited,  that  it  is  the  Fourteenth  Amendment 
that  gives  this  power  to  the  federal  government,  that  is 
the  power  involved  in  that  case.  See  Justice  Field's 
opinion  in  the  same  case,  and  opinion  in  the  Civil  Rights 
Case.27 

I  should  remark  that  the  power  exercised  by  the  na- 
tional courts  to  take  from  state  courts  persons  under  pros- 
ecution for  acts  done  as  federal  officers  does  not  emanate 
from  the  Fourteenth  Amendment,  but  from  a  power  in- 
herent in  the  nation  to  restrain  state  action  that  cripples 

25  Ex  parte  Virginia,  100  U.  S.  339. 
2624  Howard,  66. 
27  109  U.   S.  3. 


TH®    FOURTEENTH     AMENDMENT.  445 

or  destroys  capacity  in  the  general  government  to  execute 
its  functions.  But  the  state  does  not  possess  power,  by 
habeas  corpus,  to  take  from  the  custody  of  the  federal 
courts  an  officer  of  the  state  who  may,  in  acting  as  such, 
be  charged  with  violating  federal  law.28 

Appeal  in  Habeas  Corpus. — A  prisoner  defeated  in  ha- 
beas corpus,  based  on  alleged  violation  of  his  rights  under 
the  Fourteenth  Amendment,  can  go,  by  writ  of  error,  to 
the  Supreme  Court  of  the  United  States  from  the  judg- 
ment of  the  highest  state  court.  It  involves  a  question 
under  the  Constitution.29  But  suppose  a  state  prosecut- 
ing a  malefactor  against  its  laws  is  wronged  by  disccharge 
of  a  prisoner  by  a  circuit  court  of  the  United  States. 
What  is  the  state's  redress  ?  For  a  time  it  had  no  redress ; 
but  under  Section  5,  Act  March  3,  1891,30  the  state  may 
of  right  go  by  writ  of  error  into  the  Supreme  Court  of 
the  United  States,  because  that  act  gives  appeal  "in  any 
case  that  involves  the  construction  or  application  of  the 
Constitution  of  the  United  States."31 

Mandamus  from  Federal  to  State  Court. — Does  it  lie? 
The  question  has  not  been  answered  by  -decisions  defi- 
nitely. Suppose  the  United  States  Supreme  Court,  in 
the  exercise  of  an  appellate  jurisdiction,  which  no  one 
now  questions,  reverses  a  decision  of  the  highest  court 
of  a  state,  and  the  state  court  either  from  misconstruction 
of  the  federal  decision,  or  in  willful  disregard  of  it,  does 
not  execute  the  mandate  of  the  Supreme  Court,  or  departs 

28Ableman  v.  Booth,  21  How.  506. 

20  Cook  v.  Hart,  146  U.  S.  183;  Parsons  v.  District,  170  U.  S.  45. 

3026  U.  S.  Stat.  Chap.  517,  page  827. 

siHarkrader  v.  Wadley,  172  U.  S.   148. 


446  RIGHTS    AND    PRIVILEGES    UNDER 

from  it  in  its  further  proceedings ;  what  is  the  remedy  of 
the  suitor?  There  is  no  question  but  that  if  the  state 
court's  further  action  departs  from  what  the 
United  States  Supreme  Court  directed  or  the  prin- 
.  ciples  of  its  decisions  require,  an  appeal  again 
lies.  No  doubt,  either,  that  the  Supreme  Court 
may  issue  its  own  process  to  a  federal  marshal  and 
thus  execute  its  judgment  where  that  is  appropriate, 
that  is,  where  such  process,  from  the  nature  of  the 
judgment,  will  accomplish  all  that  the  judgment  con- 
templates. This  was  done  in  the  case  of  Martin  v.  Hun- 
ter,32 where  the  Virginia  Court  of  Appeals-  denied  power 
in  the  United  States  Supreme  Court  to  mandate 
it,  and  refused  to  comply  with  the  mandate,  the 
Supreme  Court  reversed  the  refusal,  and  issued  its 
own  execution.  But  the  present  question  is,  Can  the  Su- 
preme Court  issue  a  mandamus  to  compel  the  highest 
court  of  a  state  to  execute  its  decision  ?  I  should  answer 
in  the  affirmative,  simply  because  the  federal  Supreme 
Court  having  undoubted  appellate  power  over  the  state 
courts,  it  necessarily  follows  that  it  must  be  able,  by  a 
process  of  its  own,  to  effectuate  its  judgment.33  If  this 
is  not  so,  here  is  right  in  a  citizen  without  remedy ;  a  func- 
tion in  a  court  assigned  by  law  incapable  of  enforcement. 
It  is  said  that  a  court  of  one  government  can  not  issue 
a  mandamus  to  a  court  of  another.  That  is  true ;  but  the 
highest  law  gives  appeal  to  the  national  Supreme  Court, 
and  in  this  particular  instance,  for  this  particular  pur- 
pose, makes  the  two  courts  the  same  as  if  they  were  courts 

32  1  Wheat.  304. 

33  In  re  Green,  141  U.  rf.  325. 


TUB    FOURTEENTH     AMENDMENT.  447 

of  the  same  government.  There  can  be  no  question  that 
a  federal  supreme  or  superior  court  may  award  a  man- 
damus to  compel  an  inferior  federal  court  to  obey  its 
decision;  and  likewise  may  a  supreme  or  superior  state 
court  compel  an  inferior  state  court.  I  assimilate  them 
for  the  question  in  hand.  But  I  do  not  think  that  any 
but  the  United  States  Supreme  Court  can  issue  a  man- 
damus to  a  state  court.  The  Supreme  Court  has  left 
the  question  open.  It  strongly  and  properly  declares, 
through  Chief-Justice  Fuller,  in  In  re  Blake,34  that  the 
process  by  mandamus  would  be,  in  such  case,  "a  mode 
of  redress  very  likely  to  lead  to  jealousies  and  collisions 
between  the  state  and  general  governments  of  a  character 
anything  but  desirable",  and  in  the  case  it  refused  a  man- 
damus, because  a  writ  of  error  to  correct  the  state  court 
would  answer  all  purposes. 

In  Martin  v.  Hunter,  supra,  the  same  course  of  pro- 
ceeding by  writ  of  error,  upon  refusal  of  the  state  court 
to  follow  the  Supreme  Court,  was  adopted.  By  a  later 
case  just  out,  where  a  federal  court  refuses  to  obey,  there 
can  be  mandamus;  but  if  it  goes  on  and  later  commits 
error,  a  writ  of  error,  not  mandamus,  is  proper  to  correct 
the  error  in  matter  not  passed  on  before.35 

The  fourteenth  section  of  the  Judiciary  Act  gives 
the  Supreme  Court  power  to  issue  any  writ  necessary 
to  execute  its  jurisdiction.  I  do  not  see  why  mandamus 
would  not  lie  to  compel  a  state  court.36  But  it  only 
lies  where  writ  of  error  or  other  course  will  not  be  ad- 

34  175  U.  S.  114,  20  Sup.  Ct.  42. 

35  Ex  parte  Union  Steamboat  Co.  178  U.  S.  317,  20  Sup.  Ct.  904. 
s«  Ex  parte  Union  Steamboat  Co.  178  U.  S.  317,  20  Sup.  Ct.  904. 


448  RIGHTS    AND    PRIVILEGES    UNDER 

equate.37  It  does  not  lie  to  compel  a  state  court  to  re- 
store a  disbarred  attorney.38  But  this  does  not  answer 
the  question.  Section  688  Kevised  Statute  only  gives 
mandamus  from  Supreme  to  lower  federal,  not  state, 
courts.  I  know  of  no  statute  authorizing  it  to  state 
courts. 

3T  Ex  partc  Union  Steamboat  Co.  178  U.  S.  317,  20  Sup.  Ct.  904; 
Re  Atlantic  City  R.  Co.  164  U.  S.  633;  Re  Pennsylvania  Co.  137  U. 
S.  451 ;  Re  Morrison,  147  U.  S.  14. 

38  ln  re  Green,  141  U.  S.  325. 


TH&    FOURTEENTH     AMENDMENT.  44Q 


Chapter  2J, 


CONGRESSIONAL    INTERVENTION. 

We  have  been  discussing  the  means  and  mode  by 
which  the  federal  government  may  vindicate  the  Four- 
teenth Amendment.  We  have  seen  what  extensive  ju- 
risdiction and  powers  are  vested  in  the  federal  courts 
to  enforce  the  provisions  of  the  Fourteenth  Amendment. 
We  must  not  forget  that  another  department  of  the  na- 
tional government  has  a  jurisdiction  and  power  over  the 
states  for  its  enforcement  which  are  broad  and  mighty, 
the  exact  boundaries  of  which  have  not  been  very  defi- 
nitely settled.  I  mean  the  power  of  Congress.  The 
fifth  section  of  the  Fourteenth  Amendment  says:  "The 
Congress  shall  have  power  to  enforce,  by  appropriate  leg- 
islation, the  provisions  of  this  article."  What  is  the 
scope  of  this  power  of  Congress?  Where  are  its  limits? 
In  what  cases,  in  what  manner,  is  it  to  be  exercised  ? 
The  section  does  not  say,  could  not  say.  When  Con- 
gress may  intervene,  or  how,  to  curb  state  action  by  its 
legislation  this  section  does  not  say;  but  that  it  has 
this  power  no  one  can  question.  Clearly  it  is  with  Con- 
gress, in  the  first  instance,  to  say,  to  legislate,  subject 
only  to  the  power  of  the  federal  judiciary,  in  the  end, 


450  RIGHTS    AND    PRIVILEGES    UNDER 

to  say  whether  its  legislation  falls  within  the  circum- 
ference of  "appropriate  legislation"  mentioned  in  sec- 
tion 5. 

Away  back  in  1842,  under  the  clause  of  the  Consti- 
tution that  no  person  held  to  service  in  one  state  escap- 
ing into  another  should  be  discharged  by  the  law  of  the 
state  of  refuge,  "but  shall  be  delivered  up,  on  claim  of 
the  party  to  whom  such  service  or  labor  is  due,"  the 
question  was  as  to  the  power  of  the  nation  to  enforce 
this  mandate,  and  the  Supreme  Court  said:  "The  fun- 
damental principle  applicable  to  all  cases  of  this  sort 
would  seem  to  be  that  where  the  end  is  required,  the 
means  are  given;  and  where  the  duty  is  enjoined,  the 
ability  to  perform  it  is  contemplated  to  exist  on  the 
part  of  the  functionaries  to  whom  it  is  entrusted."1 

"Congress  have,  on  various  occasions,  exercised  powers 
which  were  necessary  and  proper,  as  means  to  carry 
into  effect  rights  expressly  given  and  duties  expressly 
enjoined  by  the  Constitution.  The  end  being  required, 
it  has  been  deemed  a  just  and  necessary  implication  that 
the  means  to  accomplish  it  are  given  also;  or,  in  other 
words,  that  the  power  flows  as  a  necessary  means  to  ac- 
complish the  ends."2 

There  no  plain,  express  power  was  given;  only  an  im- 
plied one;  whereas  the  amendment  gives,  in  words,  wide 
power;  the  means  to  accomplish  it  are  given  also,  not 
by  implication,  but  by  expression.  Therefore  it  seems 
plain  that  all  the  means  stated  in  this  early  expression 

1  Prigg  v.  Commonwealth  of  Pennsylvania,  16  Peters,  542. 

2  Prigg  v.  Commonwealth  of  Pa.  16  Peters,  542;  Robb  v.  Connolly, 
111  U.  S.  624. 


THE    FOURTEENTH     AMENDMENT.  451 

of  the  Supreme  Court  just  quoted  are  exercisable  by 
Congress  under  the  fifth  section. 

Under  the  clause  of  the  Constitution  quoted  the  Fu- 
gitive Slave  Act  was  passed,  and,  under  the  principles 
of  power  by  implication  just  stated,  it  was  held  valid.3 

In  another  case4  the  court  said:  "While  certain  fun- 
damental rights,  recognized  and  declared,  but  not  created 
or  granted,  in  some  of  the  amendments,  are  thereby  guar- 
anteed only  against  violation  or  abridgment  by  the 
United  States  or  the  states,  as  the  case  may  be,  and  can 
not  therefore  be  affirmatively  enforced  by  Congress 
against  unlawful  acts  of  individuals;  yet  every  right  cre- 
ated by,  arising  under,  or  dependent  upon,  the  Consti- 
tution of  the  United  States,  may  be  protected  and  en- 
forced by  Congress  by  such  means  and  in  such  manner 
as  Congress,  in  the  exercise  of  the  correlative  duty  of  pro- 
tection, or  of  the  legislative  powers  conferred  upon  it 
by  the  Constitution,  may  in  its  discretion  deem  most 
eligible  and  best  adapted  to  attain  their  object." 

In  a  great  case,  Ex  parte  Virginia,5  the  court  said: 
"We  held  that  this  protection  and  this  guaranty,  as  the 
fifth  section  of  the  amendment  expressly  ordains,  may 
be  enforced  by  Congress  by  means  of  appropriate  leg- 
islation. All  the  amendments  derive  their  force  from 
this  latter  provision.  It  is  not  said  that  the  judicial 
power  of  the  general  government  shall  extend  to  enforc- 
ing the  prohibitions  and  protecting  the  rights  and  im- 
munities guaranteed.  It  is  not  said  that  branch  of 

3  Ableman  v.  Booth,  21  How.  506. 
*  Logan  v.  U.  S.  144  U.  S.  293. 
5100   U.   S.   p.   345. 


452  RIGHTS    AND    PRIVILEGES    UNDER 

the  government  shall  be  authorized  to  declare  void  any 
action  of  a  state  in  violation  of  the  prohibitions.  It  is 
the  power  of  Congress  which  has  been  enlarged.  Con- 
gress is  authorized  to  enforce  the  prohibitions  by  appro- 
priate legislation.  Some  legislation  is  contemplated  to 
make  the  amendment  fully  effective.  Whatever  legis- 
lation is  appropriate,  that  is,  adapted  to  carry  out  the 
objects  the  amendments  have  in  view,  whatever  tends  to 
enforce  submission  to  the  prohibitions  they  contain,  and 
to  secure  to  all  persons  the  enjoyment  of  perfect  equality 
of  civil  rights  and  the  equal  protection  of  the  laws 
against  state  denial  or  invasion,  if  not  prohibited,  is 
brought  within  the  domain  of  congressional  power.  Nor 
does  it  make  any  difference  that  such  legislation  is  re- 
strictive of  what  the  state  might  have  done  before  the 
constitutional  amendment  was  adopted.  The  prohibi- 
tions of  the  Fourteenth  Amendment  are  directed  to  the 
states,  and  they  are  to  a  degree  restrictions  of  state  power. 
It  is  these  which  Congress  is  empowered  to  enforce,  and 
to  enforce  against  state  action,  however  put  forth, 
whether  that  action  be  legislative,  executive  or  judicial. 
Such  enforcement  is  no  invasion  of  state  sovereignty. 
No  law  can  be,  which  the  people  of  the  state  have,  by  the 
Constitution  of  the  United  States,  empowered  Congress 
to  enact.  .  .  .  Such  legislation  must  act  upon  persons, 
not  upon  the  abstract  thing  denominated  a  State,  but 
upon  the  persons  who  are  agents  of  the  state  in  the  denial 
of  the  rigths  which  were  intended  to  be  secured.  The 
argument  in  support  of  the  petition  for  habeas  corpus 
ignores  entirely  the  power  conferred  upon  Congress  by 
the  Fourteenth  Amendment.  Were  it  not  for  the  fifth 


THE     FUl.'RTZEM'H      A.UEXDUEM'.  453 

section,  there  might  be  room  for  the  argument  that  the 
first  section  is  only  declaratory  of  the  moral  duty  of  the 
state,  as  was  said  in  Commonwealth  of  Kentucky  v.  Den- 
nison,  24  How.  66.  The  act  under  consideration  in  that 
case  provided  no  means  to  compel  the  execution  of  the 
duty  required  by  it,  and  the  Constitution  gave  none. 
It  was  of  such  an  act  that  Mr.  Chief-Justice  Taney  said, 
that  any  punishment  for  neglect  or  refusal  to  perform  the 
duty  required  by  the  act  of  Congress  'would  place  every 
state  under  the  control  and  dominion  of  the  general  gov- 
ernment, even  in  the  administration  of  its  internal  con- 
cerns and  reserved  rights.'  But  the  Constitution  now 
expressly  gives  authority  for  congressional  interference 
and  compulsion  in  the  cases  embraced  within  the 
Fourteenth  Amendment.  It  is  but  a  limited 
authority,  it  is  true,  extending  only  to  a  sin- 
gle class  of  cases;  but  within  its  limits,  it  is  complete. 
The  remarks  of  Chief-Justice  Taney  in  Kentucky 
v.  Dennison  and  Collector  v.  Day,  though  entirely  just 
as  applied  to  the  cases  in  which  they  were  made,  are  in- 
applicable to  the  case  we  now  have  in  hand."  In  the  case 
from  which  I  have  just  quoted  it  was  held  that  a  state 
judge  could  be  punished  in  a  federal  court  under  a  fed- 
eral statute  for  excluding  jurors  on  account  of  color. 

"A  right,  whether  created  by  the  Constitution,  or  only 
guaranteed  by  it,  even  without  express  delegation  of 
power,  may  be  protected  by  Congress.  Prigg  v.  Com- 
monwealth, 16  Peters  539."° 

« Strauder    v.    West    Virginia,    100    U.    S.    p.    310. 


454  RIGHTS    AND    PRIVILEGES    UNDER 

"Rights  and  immunities  created  by  or  dependent  upon 
the  Constitution  of  the  United  States  can  be  protected 
by  Congress.  The  form  and  manner  of  the  protection 
may  be  such  as  Congress,  in  the  legitimate  exercise  of 
legislative  discretion,  may  provide.  These  may  be  varied 
to  meet  the  necessities  of  the  particular  right  to  be  pro- 
tected."7 

One  of  the  modes  of  protection  is  the  removal  from 
state  to  federal  courts  of  suits  involving  such  rights  under 
the  Fourteenth  Amendment.8  ' 

"Every  addition  of  power  to  the  general  government 
involves  a  corresponding  diminution  of  the  governmental 
power  of  the  states.  It  is  carved  out  of  it."9  The  Four- 
teenth Amendment  is  a  vast  diminution  of  state  power. 

The  Civil  Rights  Cases10  must  be  regarded  under  this 
head  as  leading  and  guiding  authority.  The  holding  of 
the  court  was:  "The  Fourteenth  Amendment  is  prohibi- 
tory upon  the  states  only  and  the  legislation  authorized 
to  be  adopted  by  Congress  for  enforcing  it  is  not  direct 
legislation  on  the  matters  respecting  which  the  states 
are  prohibited  from  making  or  enforcing  certain  laws, 
or  doing  certain  acts,  but  is  corrective  legislation,  such 
as  may  be  necessary  or  proper  for  counteracting  and  re- 
dressing the  effect  of  such  laws  or  acts."  Justice  Brad- 
ley delivered  a  very  able  opinion,  the  effect  of  which  is 
that  it  is  state  action  of  a  particular  character  that  is 
prohibited  by  the  amendment,  individual  invasion  of 

7  U.  S.  v.  Reese,  92  U.  S.  214. 
sStrauder  v.  W.  Va.   100  U.  S.  p.   311. 
»  Ex  parte  Virginia,  100  U.  S.  p.  346. 
10  109  U.   S.  3. 


THE    FOURTEENTH     AMENDMENT.  455 

individual  rights  not  being  the  subject  matter  of  the 
amendment.  It  nullifies  all  state  legislation  and  action 
of  every  kind  which  impairs  the  privileges  and  immuni- 
ties of  citizens  of  the  United  States,  or  injures  person  in 
life,  liberty  or  property,  or  denies  them  the  equal  pro- 
tection of  the  laws.  It  not  only  does  this,  but  in  order 
that  the  national  will  may  not  be  mere  brutum  fulmen, 
the  last  section  gives  Congress  power  to  enforce  it  by  ap- 
propriate legislation  for  correcting  the  effect  of  prohibited 
state  laws  and  action,  and  thus  render  them  void  and 
innocuous.  This 'is  the  power  conferred  upon  Congress, 
and  this  the  whole  of  it.  It  does  not  invest  Congress 
with  power  to  legislate  upon  subjects  within  the  domain 
of  state  legislation ;  but  to  provide  modes  of  relief  against 
state  legislation  or  action  of  the  kind  referred  to.  It  does 
not  authorize  Congress  to  create  a  code  of  municipal 
law  for  the  regulation  of  private  rights ;  but  only  to  pro- 
vide modes  of  redress  against  the  operation  of  state 
laws,  and  the  action  of  state  officers,  executive  or  judi- 
cial, when  subversive  of  the  fundamental  rights  speci- 
fied in  the  Fourteenth  Amendment. 

Positive  rights  and  privileges  are  undoubtedly  secured 
by  the  amendment;  but  they  are  secured  by  way  of  pro- 
hibition against  state  law  and  proceedings,  and  power  is 
given  Congress  to  carry  such  prohibition  into  effect;  and 
its  legislation  must  be  predicated  upon  such  supposed 
laws  or  state  proceedings,  and  be  directed  to  the  correc- 
tion of  their  operation  and  effect.  To  show  his  mean- 
ing Justice  Bradley  cited  the  provision  prohibiting  states 
from  impairing  the  obligation  of  contracts,  and  he  said 
that  this  did  not  give  Congress  power  to  provide  for 


456  RIGHTS    AND    PRIVILEGES    UNDER 

general  enforcement  of  contracts,  nor  power  to  invest  fed- 
eral courts  with  jurisdiction  over  contracts,  so  as  to  en- 
able parties  to  sue  upon  them  in  those  courts;  but  it  did 
give  power  to  provide  remedies  by  which  impairment 
of  contracts  by  state  law  might  be  counteracted ;  that  the 
remedy  which  Congress  had  provided  was  an  appeal  from 
the  state  courts  to  the  Supreme  Court,  where  the  state 
courts  upheld  a  statute  alleged  to  impair  such  contract; 
and  that  no  attempt  was  made  to  draw  into  federal  courts 
litigation  over  contracts  generally.  He  further  said  that 
some  obnoxious  state  law  passed,  or  that  might  be  passed, 
is  necessary  to  be  assumed,  in  order  to  lay  the  founda- 
tion of  any  federal  remedy  in  the  case,  for  the  reason 
that  the  prohibition  was  against  state  laws  impairing  con- 
tracts. "And  so  in  the  present  case,  until  some  state  law 
has  been  passed,  or  some  state  action  through  its  officers 
or  agents  has  been  taken,  adverse  to  the  rights  of  citi- 
zens sought  to  be  protected  by  the  Fourteenth  Amend- 
ment, no  legislation  of  the  United  States  under  said 
amendment,  nor  any  proceeding  under  such  legislation 
can  be  called  into  activity;  for  the  prohibitions  are 
against  state  laws  and  acts  done  under  state  authority. 
Of  course  legislation  may,  and  should  be,  provided  in 
advance  to  meet  the  exigency  when  it  arises ;  but  it  should 
be  adapted  to  the  mischief  and  wrong  which  the  amend- 
ment was  intended  to  provide  against,  and  that  is  state 
action  or  laws  of  some  kind  adverse  to  the  rights  of  the 
citizen  secured  by  the  amendment.  Such  legislation  can 
not  properly  cover  the  whole  domain  of  rights  appertain- 
ing to  life,  liberty  and  property,  defining  them  and  pro- 
viding for  their  vindication.  rhjt  would  be  to  establish 


TUB    FOURTEENTH     AMENDMENT.  457 

a  code  of  municipal  law  regulative  of  all  private  rights 
between  man  and  man  in  society.  It  would  be  to  make 
Congress  take  the  place  of  state  legislatures,  and 
supersede  them.  It  is  absurd  to  affirm  that  because  the 
rights  of  life,  liberty  and  property  (which  in- 
clude all  civil  rights  that  men  have)  are,  by 
the  amendment  sought  to  be  protected  against  in- 
vasion on  the  part  of  the  state  without  due  pro- 
cess of  law,  Congress  may  therefore  enact  due  process 
of  law  in  every  case;  and  that  because  denial  by  a  state 
to  any  person  of  the  equal  protection  of  the  law  is  pro- 
hibited, therefore  Congress  may  establish  laws  for  their 
equal  protection.  In  fine,  the  legislation  which  Congress 
is  authorized  to  adopt  in  this  behalf  is  not  general  legis- 
lation upon  the  rights  of  the  citizen,  but  corrective  leg- 
islation, that  is,  such  as  may  be  necessary  for  counter- 
acting such  laws  as  states  may  adopt,  and  which,  by  the 
amendment,  they  are  prohibited  from  making,  or  such 
acts  and  proceedings  as  the  state  may  commit  or  take, 
and  which,  by  the  amendment,  they  are  prohibited  from 
committing  or  taking." 

The  opinion  is  a  very  luminous  deliverance  by  a  very 
able  judge,  who  can  not  be  accused  of  undue  pro-state 
partiality.  It  is  as  clear  a  statement  of  general  prin- 
ciples as  can  be  made.  It  seems  to  be  sound.  It  asserts 
what  is  important,  initial  and  cardinal  in  the  application 
of  the  Fourteenth  Amendment,  that  it  is  not  an  affir- 
mative, positive,  original  grant  of  power  to  the  nation, 
or  of  original  legislation  to  Congress  over  privileges  and 
immunities,  life,  liberty,  property,  equality,  like  that 
given  to  the  nation  to  regulate  foreign  and  interstate  com- 


458  RIGHTS    AND    PRIVILEGES    UNDER 

merce.  It  is  prohibitory  only.  Congress  can  not  grant 
rights  of  life,  liberty  or  property,  or  originally  say  what 
they  are  or  shall  be,  or  deny  them,  or  regulate  them  by 
police  regulations  or  otherwise.  These  matters  pertain 
to  state  authority,  state  autonomy,  local  self-government. 
The  body  of  law  touching  them  must  come  from  the  state, 
and  it  is  only  when  the  state  assails  them  without  due 
process  that  the  power  of  Congress  comes  in.  ,Can  Con- 
gress pass  an  act  anticipatory  of  wrongs  against  the 
amendment  ?  It  may  do  so,  provided  it  be  not 
general  legislation  or  regulation  on  the  subject, 
but  prohibitive  of  those  things  which,  if  done, 
prejudice  the  rights  mentioned  in  the  amendment. 
We  might  say  that  Congress,  in  case  of  a  given  act  of  a 
state  legislature,  might  pass  an  act  declaring  it  void; 
yet  this  would  be  unheard  of.  No  doubt,  Congress  can 
provide  ample  remedies  through  the  federal  judiciary, 
to  correct  violations  of  the  amendment  that  may  occur. 
It  has  done  so  in  an  act11  giving  jurisdiction  to  circuit 
courts  of  cases  arising  under  the  Constitution  or  laws 
of  the  United  States,  and  by  appeal  to  the  Supreme  Court 
of  the  United  States,  and  by  removal  of  suits  involving 
such  rights  from  state  to  federal  courts.  These  remedies 
have  proven  adequate  for  a  long  time,  and  will  likely  con- 
tinue to  do  so;  but  beyond  question  Congress  can  change 
and  enlarge  them,  from  time  to  time,  to  meet  changing 
circumstances  or  exigencies.  The  fault  found  by  the  Su- 
preme Court  with  the  Civil  Rights  Act  was  that  it  was 
original  legislation,  originating  rights,  declaring  that  all 

11  Rev.  Stat.  Sec.  629;   Act  13,  March,  1887. 


THE    FOURTEENTH     AMENDMENT.  459 

persons  should  be  entitled  to  full  and  equal  enjoyment  of 
the  accomodations,  advantages,  facilities  and  privileges 
of  inns,  public  conveyances,  theaters  and  other  places  of 
public  amusement,  subject  only  to  the  conditions  and  lim- 
itations established  by  law,  and  applicable  alike  to  all 
citizens  of  every  race  and  color.  This  was  simply  and 
purely  state  legislation.  Such  powers,  notwithstanding 
the  amendment,  still  remain  with  the  states.  Just  such 
an  act  by  a  state  was  held  constitutional,  properly  so, 
because  it  was  within  the  state  power  of  legislation.12 

It  may  cast  light  upon  the  proper  construction  of  the 
fifth  section  of  the  amendment  to  say  that  when  that 
amendment  was  proposed  in  Congress,  a  clause  was  pro- 
posed reading  thus:  "Congress  shall  have  power  to  make 
all  laws  which  shall  be  necessary  and  proper  to  secure  to 
the  citizens  of  each  state  all  the  privileges  and  immu- 
nities of  citizens  in  the  several  states,  and  to  all  persons 
in  the  several  states  equal  protection  in  the  rights  of  life, 
liberty  and  property."  It  was  rejected.  That  rejection 
sheds  light  on  the  meaning  of  what  was  adopted.  Had 
that  clause  been  adopted,  the  amendment  would  mean 
more  than  it  does.  It  would  have  given  Congress  power 
to  •  do  what  the  Supreme  Court  in  the  Civil  Rights 
Cases  says  it  has  no  right  to  do.  It  would  have  given 
Congress  power  of  affirmative  legislation,  such  as  it  has 
in  regard  to  commerce,  to  make  laws,  original  power 
to  make  laws  touching  rights  which  the  people  of  the 
states  have,  under  state  laws,  covering  immunities,  privi- 
leges, life,  liberty,  property  and  equality;  in  short,  to 

izDonnell  v.  State,  48  Miss.  661. 


460  RIGHTS    A.XD    PRIVILEGES    UNDER 

make  a  code  of  regulation,  of  governing  law,  as  to  these 
matters,  which,  as  Justice  Bradley,  in  those  cases,  said 
cover  everything  of  value  which  man  has;  but  as  adop 
ted,  the  powers  of  Congress  under  the  amendment  are 
only  vetoing,  corrective,  restricting,  nullifying  bad  laws 
and  action  of  the  states  denying  those  rights. 

These  principles  are  exemplified  in  another  case,13 
which  involved  the  question  whether  section  5519,  Re- 
vised Statutes,  was  congressional  legislation  warranted 
by  the  Fourteenth  Amendment.  That  section  provided 
that  if  persons  conspired  or  went  in  disguise  upon  high- 
ways in  any  state  or  on  premises  of  another,  to  de- 
prive any  persons,  or  class  of  persons,  of  the  equal  pro- 
tection of  the  laws,  or  of  equal  privileges  or  immunities, 
or  to  prevent  or  hinder  the  authorities  of  a  state  from  giv- 
ing all  persons  equal  protection  of  the  laws,  they  should 
be  fined  or  imprisoned.  The  act  was  held  not  warranted 
by  the  Fourteenth  Amendment.  It  was  simply  state  leg- 
islation creating  and  punishing  crime  committed  by  indi- 
viduals, not  legislation  to  antidote  state  action.  "It  is 
perfectly  clear,"  says  the  opinion  by  Justice  Wood,  "that 
its  purpose  also  was  to  place  a  restraint  upon  the  action 
of  the  states.  In  the  Slaughter  House  Cases,  16  Wall. 
36,  it  was  held  by  the  majority  of  the  court,  speaking  by 
Mr.  Justice  Miller,  that  the  object  of  the  second  clause 
of  the  first  section  of  the  Fourteenth  Amendment  was  to 
protect  from  the  hostile  legislation  of  the  states  the  privi- 
leges and  immunities  of  citizens  of  the  United  States. 
In  the  same  case  the  court  said  that  'if  the  states  do  not 

is  U.  S.  v.  Harris,  106  U.  S.  C29. 


THE     FOURTEENTH     AMENDMENT.  4QI 

conform  their  laws  to  its  requirements,  then  by  the  fifth 
section  Congress  was  authorized  to  enforce  it  by  suit- 
able legislation."'  The  opinion  of  Justice  Bradley,  in 
U.  S.  v.  Cruikshank,14  was  quoted  with  approval:  "It  is 
a  guaranty  of  protection  against  the  act  of  the  state 
government  itself.  It  is  a  guaranty  against  the  exer- 
tion of  arbitrary  and  tyrannical  power  on  the  part  of 
the  government  and  legislation  of  the  states,  not  a  guar- 
anty against  the  commission  of  individual  offenses;  and 
the  power  of  Congress,  whether  expressed  or  implied,  to 
legislate  for  the  enforcement  of  such  guaranty  does  not 
extend  to  the  passage  of  laws  for  the  suppression  of  crime 
within  the  state.  The  enforcement  of  the  guaranty  does 
not  require  or  authorize  Congress  to  perform  the  duty 
that  the  guaranty  itself  supposes  it  to  be  the  duty  of  the 
state  to  perform,  and  which  it  requires  the  state  to  per- 
form." Again,  in  the  Cruikshank  Case15  and  Virginia  v. 
Rives,10  the  amendment  was  declared  to  operate  on  the 
state,  not  individuals,  and  this  forbids  all  idea  that  Con- 
gress could  legislate  on  the  subjects  mentioned  in  the 
amendment,  except  against  adverse  state  action.  The 
words  of  the  amendment  are,  ano  state  shall"  do  cer- 
tain things,  showing  unmistakably  that  it  is  not  general 
legislation  by  Congress  that  is  meant,  legislation  creat- 
ing, defining,  enlarging,  limiting,  or  regulating  civil 
personal  rights,  or  creating  and  punishing  crime  in  the 
first  instance.  Congress  can  only,  by  proper  legislation, 
render  harmless  hostile  legislation  or  actions  of  states. 

i*  1  Wood,  308. 
"92  U.  S.  542. 
ie  100  U.  S.  313. 


462  RIGHTS    AND    PRIVILEGES    UXDER 

Where  Congress  has  not  merely  prohibitory  power,  but 
affirmative,  original  power  given  up  to  it  by  the  states, 
as  to  regulate  commerce,  coin  money,  carry  mail,  lay 
tariff,  it  is  different,  it  is  vested  with  power  of  general 
legislation  on  those  subjects.  The  case  of  IT.  S.  v. 
Reese17  was  upon  the  Fifteenth  Amendment,  but  illus- 
trates the  same  view.  Congress  had  passed  an  act  mak- 
ing it  an  offense  for  any  officer  of  an  election  to  wrong- 
fully refuse  to  receive  or  count  a  vote,  or  for  any  per- 
son, by  force,  bribery  or  unlawful  means,  to  hinder  a 
citizen  from  voting  at  any  election.  If  the  act  had  pun- 
ished those  who  deprived  a  man  of  his  right  to  vote  "on 
account  of  race,  color  or  previous  condition  of  servitude," 
it  might  have  been  justified  by  the  Fifteenth  Amend- 
ment; but  it  was  general  legislation  against  depriving 
anyone  on  any  score  of  his  vote,  not  legislation  to  meet 
the  wrong  of  depriving  one  of  a  vote  "on  account  of  race, 
color  or  previous  condition  of  servitude,"  and  it  was  only 
legislation  having  that  end  in  view  that  was  "appropri- 
ate legislation"  under  amendment  Fifteen.  The  act  was 
held  unconstitutional. 

In  Baldwin  v.  Franks  18  the  statute  involved  in  U.  S. 
v.  Harris19  was  again  held  not  warranted  by  Amendment 
Fourteen  on  the  same  principles.  It  was  also  held  that 
Congress  could  pass  laws  to  punish  anyone  for  depriv- 
ing Chinese  of  rights  guaranteed  by  treaty.  This  was  be- 
cause the  full  treaty  making  power  is  given  to  the  nation, 
and  a  treaty  is  federal  law,  and  Congress  may  punish 

"92  U.  S.  214. 
is  120  U.  S.  678. 
i»  106  U.  S.  629. 


THE     FOURTEENTH     AMENDMENT.  453 

wrongs  against  that  law.  This  again  illustrates  the  con- 
trast between  such  legislation  and  that  appropriate  to 
make  good  the  Fourteenth  Amendment.  So  it  must  not 
be  thought  that  Ex  parte  Yarbrough20  militates  against 
this  doctrine,  or  any  case  holding  valid  legislation  of 
Congress  based  on  affirmative  grants  of  power  to  the 
union. 

20  no  U.  S.  665. 


464  RIGHTS    AND    PRIVILEGES    UNDER 


Chapter  22. 


EMINENT    DOMAIN. 

"Eminent  domain  is  the  power  of  the  state  to  apply 
private  property  to  public  purposes  on  payment  of  just 
compensation  to  the  owner."1  This  tells  at  once  what 
a  mighty  power  this  is.  By  it  the  state  seizes  the  citi- 
zen's property,  takes  it  from  him  against  his  will,  and 
applies  it  to  the  public  use  in  making  highways,  railroads 
and  other  things  for  public  use.  "The  right  to  exercise  the 
power  of  eminent  domain  is  inherent  in  sovereignty,  ne- 
cessary to  it,  inseparable  from  it.  From  the  very  nature 
of  society  and  organized  government  this  right  must  be- 
long to  the  state,"  without  mention  in  the  Constitution.2 
The  present  work  is  not  designed  to  discuss  this  important 
subject  further  than  as  to  how  far  the  Fourteenth  Amend- 
ment bears  upon  it.  The  power  existed  in  the  Colonies 
when  they  became  independent.  The  Fourteenth 
Amendment  found,  when  it  came,  an  established  process 
resident  in  the  states,  by  which  alone  the  state  could  con- 
demn, for  public  want  and  purposes,  the  citizen's  private 
property.  It  was  thus  usual,  established,  due  process  in 

iU.  S.  v.  Jones,  109  U.  S.  518. 

2  Mississippi   Boom  Co.  v.   Patterson,   98  U.   S.   403. 


TEE    FOURTEENTH     AMENDMENT.  465 

this  respect,  and  therefore  can  not  fall  under  the  brand  of 
that  amendment,  and  lives  yet  regardless  of  it.  The  fed- 
eral Constitution  says,  in  its  Fifth  Amendment,  that 
private  property  shall  not  be  taken  for  public  use  with- 
out just  compensation;  but  that  restrains  only  the  fed- 
eral government,  not  the  states — so  much  so  that  when  it 
was  alleged  that  private  property  was  being  invaded 
by  an  act  of  the  Mississippi  legislature  for  public  use, 
without  compensation,  and  an  appeal  was  made  to  the 
United  States  Supreme  Court  for  protection,  it  was  held 
that  even  if  the  state  constitution  did  declare  that  pri- 
vate .property  should  not  be  taken  for  public  use  with- 
out compensation,  and  the  state  court  had  sustained  the 
act,  the  Supreme  Court  had  no  power  to  review  the  de- 
cision.3 This  function,  to  protect  its  citizens  against 
improper  exercise  of.  the  power,  was  alone  with  the 
states.4  Those  cases  were  before  the  Fourteenth  Amend- 
ment; but  it  has  not  impaired  this  power  of  the  states.5 
The  United  States  can  not  interfere  with  the  exercise  by 
the  state  of  her  right  of  eminent  domain  in  taking  for 
public  use  land  within  her  limits  which  is  private  prop- 
erty.6 Still,  some  cases  have  gone  to  the  Supreme  Court 
upon  the  contention  that  the  Fourteenth  Amendment 
was  violated  by  the  state,  as  almost  any  action  of  the 
states  may  now  be  charged. 

"This  court  has  authority  to  re-examine  the  final  judg- 
ment of  the  highest  court  of  a  state  in  a  proceeding  to 

3  Withers  v.  Buckler,  20  How.  84. 

*  Mills  v.  St.  Clair,  8  How.  569. 

*  Wilson  v.  B.  &  P.  R.  R.  5  Del.  Ch.  524. 
«Boora  Co.  v.  Patterson,  98  U.  S.  403. 


466  RIGHTS    AND    PRIVILEGES    UNDER 

condemn  private  property  for  public  use,  in  which,  after 
verdict,  a  defendant  assigned  as  ground  of  new  trial 
that  the  statute  under  which  the  case  was  instituted  and 
the  proceedings  under  it  were  in  violation  of  the  clause 
of  the  Foureenth  Amendment,  forbidding  a  state  to  de- 
prive any  person  of  property  without  due  process  of  law, 
which  ground  of  objection  was  repeated  in  the  highest 
state  court;  provided  the  judgment  of  the  court,  by  its 
necessary  operation,  was  adverse  to  the  claim  of  federal 
right,  and  could  not  rest  on  any  independent  ground  of 
local  law.  The  contention  that  the  defendant  had  been 
deprived  of  property  without  due  process  of  law  is  not 
entirely  met  by  the  suggestion  that  he  had  due  notice 
of  the  proceedings,  appeared  and  was  admitted  to  make 
defense.  The  judicial  authorities  of  a  state  may  keep 
within  the  letter  of  the  statute  prescribing  forms  of  pro- 
cedure in  the  courts,  and  give  the  parties  interested  the 
fullest  opportunity  to  be  heard,  and  yet  it  might  be  that 
its  action  would  be  inconsistent  with  that  amendment. 
A  judgment  of  a  state  court,  even  if  authorized  by  stat- 
ute, whereby  private  property  is  taken  for  public  use 
without  compensation,  made  or  secured  to  the  owner,  is, 
upon  principle  and  authority,  wanting  in  due  process 
of  law  required  by  the  Fourteenth  Amendment.  .  .  In 
a  proceeding  in  a  state  court  for  condemnation  of  private 
property  for  public  use,  the  court  having  jurisdiction  of 
the  subject-matter  and  parties,  the  judgment  ought  not  to 
be  held  in  violation  of  due  process  of  law  enjoined  by  the 
Fourteenth  Amendment,  unless  some  rule  of  law  was  pre- 
scribed for  the  jury  that  was  in  absolute  disregard  of 


TUB    FOURTEENTH     AMENDMENT. 

the  right  of  just  compensation."7  We  have  said  that  this 
power  of  eminent  domain  is  original  in  the  states,  unim- 
paired by  the  Fourteenth  Amendment,  and  some  have 
asserted  the  power  of  the  state  to  condemn  property  to 
public  use  without  any  compensation,  and  certainly  be- 
fore the  Fourteenth  Amendment  the  federal  government 
could  not  have  prevented  it;  but  the  case  just  cited  does 
explicitly  say  that  the  state  under  the  amendment  must 
provide  for  compensation.  It  utterly  denies  the  power 
of  the  state,  were  it  to  attempt  to  do  so,  to  take  property 
for  public  use  without  compensation.  Likewise  other 
cases.8  In  the  last  case  complaint  was  made  that  possess- 
ion was  taken  pending  the  proceeding,  before  final  ad- 
judication as  to  compensation;  but  the  court  held  that 
as  the  state  constitution  allowed  property  to  be  taken 
when  compensation  was  either  "paid  or  secured,"  it  would 
follow  the  state  court  in  holding  the  provision  valid,  and 
that  possession  could  be  taken  during  the  litigation  as 
to  the  amount  of  compensation,  if  compensation  was  ad- 
equately made  or  secured.  So  in  Cherokee  Xation  v. 
Kansas  Railway.9 

In  the  Backus  case  just  cited  it  was  held  that  as  re- 
gards what  court  should  determine  the  question  of  com- 
pensation or  the  form  of  procedure,  all  that  is  essential 
is  that  "in  some  appropriate  way,  before  some  properly 
constituted  tribunal,  inquiry  shall  be  made  as  to  the 
amount  of  compensation;  and  when  this  is  provided  for 

7  C.  B.  &  Q.  R.  R.  v.  Chicago,  166  U.  S.  226. 

»Searl  v.  School  District,  133  U.  S.  553,  562;  Sweet  v.  Rechel, 
159  U.  S.  380,  398;  U.  S.  v.  Jones,  109  U.  S.  513;  Backus  v.  Fort 
Street  Co.  169  U.  S.  557. 

»  135  U.  S.  659. 


RIGHTS    AND    PRIVILEGES    UNDER 

there  is  that  due  process  of  law  which  is  required  by 
that  amendment."'  The  case  also  held  that  the  settled 
rule  of  the  court  in  cases  for  the  determination  of  the 
amount  of  damages  is  that  it  adopts  the  construction 
placed  by  the  Supreme  Court  of  the  state  upon  its  own 
constitution  and  laws.  In  another  case,  Long  Island 
Water  Supply  Company  v.  Brooklyn,10  it  is  held  that 
the  compensation  may  be  made  by  commissioners,  whose 
report  may  be  made  final,  if  the  statute  so  provide,  leav- 
ing it  open  to  the  courts  to  inquire  whether  there  was 
any  erroneous  basis  adopted  by  the  commissioners  in 
the  appraisal,  or  other  errors  of  proceeding,  and  it  was 
not  essential  that  there  should  be  a  jury  to  assess  damages. 
The  same  doctrine  that  it  is  not  material  what  form  of 
procedure  is  adopted  by  state  law,  if  it  provide  for  com- 
pensation and  opportunity  to  be  heard,  is  held  in  Lent 
v.  Tillson.11 

"There  is  no  vested  right  in  a  mode  of  procedure  es- 
tablished by  state  law  for  the  condemnation  of  property 
for  public  use;  but  each  succeeding  legislature  may  es- 
tablish a  different  one,  provided  only  that  in  each  is 
preserved  the  essential  element  of  protection."12  In 
the  last  case  it  is  held:  "The  question  of  necessity  for 
taking  property  is  not  one  of  judicial  character,  but 
rather  one  for  determination  of  the  law-making  branch 
of  the  government.  Boom  Co.  v.  Patterson,  98  U.  S.  403  ; 
U.  S.  v.  Jones,  109  Id.  513 ;  Cherokee  Xation  v.  Kan- 
sas Kailway,  135  Id.  641." 

10  16G  U.  S.  685. 

11  140  U.  S.  316. 

12  Backus  v.  Fort  Street  Co.  169  U.  S.  557 ;   Monongahela  Co.  r. 
U.  S.  148  U.  S.  312. 


THE     FOURTEENTH     AMENDMENT.  469 

In  Sweet  v.  Rechel 13  it  was  held  that  to  abate  a  nui- 
sance to  preserve  health  an  act  may  authorize  a  city  to 
take  and  fill  up  land,  and  provide  for  payment  through 
judicial  proceedings,  and  that  it  was  valid,  and  the  fee 
passed  to  the  city,  and  the  owner  was  only  entitled  to  rea- 
sonable compensation,  to  be  ascertained  in  the  manner  pro- 
vided by  the  act. 

Condemning  a  Franchise. — A  franchise  and  property 
entire  of  a  chartered  corporation  supplying  a  city  under 
contract  with  water  may  be  condemned  for  public  use 
of  the  city,  under  power  of  eminent  domain,  on  payment 
of  compensation,  including  compensation  for  the  termin- 
ation of  the  contract.  Though  the  contract  was  a  contract, 
it  too,  like  any  other  property,  was  subject  to  be  impaired 
and  destroyed  under  the  power  of  eminent  domain.14 

Not  for  Private  Use. — In  another  connection,  to  which 
I  refer,  (p.  163)  I  have  stated  fully  that  the  power  of 
eminent  domain  can  be  exercised  for  public  purposes 
only,  and  that  it  is  a  misapplication  of  that  power,  and 
unconstitutional,  to  condemn  one  man's  property  for  the 
merely  private  use  of  another.  This  is  fully  shown  in  an 
opinion  by  Justice  Harlan  in  Chicago,  Burlington  & 
Quincy  K.  R  Co.  v.  Chicago.15 

The  United  States  has  Power  of  Eminent  Domain  to  en- 
able it  to  carry  out  the  functions  assigned  to  it,  and  can 
condemn  land  within  the  states  for  its  purposes.16  This 

13159   U.   S.   380. 

n  Long  Island  Water  Co.  v.  Brooklyn,  166  U.  S.  685;  Newbury- 
port  Water  Co.  v.  City,  103  Fed.  584. 

is  166  U.  S.  235.    So  Missouri  Co.  v.  Nebraska,  164  U.  S.  403. 

i«  Cherokee  Nation  v.  Kansas  Railway,  135  U.  S.  641;  Kohl  T. 
U.  S.  91  U.  S.  (1  Otto),  367. 


470  RIGHTS    AND    PRIVILEGES    UNDER 

gives  right  to  condemn  for  postoffices,  forts,  arsenals, 
dockyards,  naval  ations — for  any  purpose  within  its 
functions. 

Appeal  to  United  States  Supreme  Court  in  Condemnation 
Cases,  just  as  in  other  civil  cases,  from  judgments  of  th* 
highest  courts  of  the  states.17 

17  C.  B.  &  Q.  Co.  v.  Chicago,  166  U,  &  226. 


THE    FOURTEENTH     AMENDMENT.  471 


Chapter  23. 

GOVERNMENT   BY  INJUNCTION. 

This  is  the  term  or  name  of  late  given  to  the  exercise 
by  courts  of  equity  of  the  process  of  injunction  to  pre- 
vent interference  by  large  bodies  of  workmen,  in  periods 
of  trouble  between  large  manufacturing  and  transpor- 
tation establishments  and  corporations,  on  the  one  hand, 
and  their  employees  and  those  sympathizing  with  them, 
on  the  other  hand,  with  the  property  or  business  of  such 
establishments  or  corporations,  by  boycotts,  strikes,  in- 
ducing laborers  to  quit  service,  or  not  to  engage  in  the 
business,  of  the  establishments  named.  Injunctions  have 
of  late  been  very  widely  used  in  such  instances,  and  have 
excited  widespread  popular  excitement  and  strong  ani- 
madversion upon  the  courts,  and  such  injunctions  have  been 
denounced  as  nothing  less  than  "government  by  injunc- 
tion," and  unconstitutional,  because  denying  the  rights  of 
jury  trial.  Persons  violating  such  injunctions  have  been 
imprisoned  for  so  doing,  without  jury  trial  as  guilty  of 
contempt  of  the  injunction  process.  The  only  question 
is,  Does  injunction  lie  in  such  cases?  The  courts  have 
decided  that  it  does;  that  these  combinations  of  men  in 
large  numbers,  in  some  instances  many  thousands  of  men, 


472  RIGHTS    AND    PRIVILEGES    UNDER 

stopping-  railroads  and  impeding  transit  thereon,  or  in- 
terfering with  other  means  of  transportation,  such  as 
shipping,  are  public  nuisances  and  subject  to  restraint 
by  injunction  from  ancient  times.  The  courts  have  also 
decided  that  when  such  bodies  of  men  obstruct  individ- 
uals or  large  manufacturing  or  industrial  corporations, 
such  as  those  mining  coal  or  iron,  or  manufacturing  iron 
or  other  things  in  which  are  invested  large  amounts  of 
capital,  and  involving  large  property  interests  of  indi- 
viduals and  corporations,  they  work  irreparable  injury 
to  private  property  and  business,  and,  being  carried  on 
by  innumerable  persons,  most  of  whom  are  unknown, 
any  remedy  by  suits  against  individuals  would  involve 
infinite  multiplicity  of  suits  and  give  inadequate  remedy, 
and  that  for  these,  and  other  reasons  applicable  to  par- 
ticular cases,  the  remedy  by  injunction  is  the  only  ad- 
equate one.  Many  cases  have  of  late  arisen  under  this 
head.  It  is  not  for  this  work  to  discuss  them,  except  only 
as  they  hold  that  the  application  by  injunction  does  not 
deprive  them  of  due  process  of  law.  Upon  this  impor- 
tant and  grave  subject  I  cite  some  of  the  cases.1 

i  U.  S.  v.  Debs,  64  Fed.  724 ;  Consol.  Steel  Wire  Co.  v.  Murry,  80 
Fed.  811;  Phelan  Case,  62  Fed.  803;  Crump  v.  The  Commonwealth, 
84  Va.  927 ;  23  S.  E.  760,  10  Am.  St.  R.  895 ;  Oneal  v.  Behanna,  182 
.Pa.  St.  236;  61  Am.  St.  R.  702,  and  full  note;  Mayer  v.  Journey 
Stone  Cutters,  47  N.  J.  Eq.  519,  20  Atl.  492;  Casey  v.  Cincinnati 
Typo.  Union,  45  Fed.  135;  Toledo,  etc.,  Co.  v.  Pa.  Co.  54  Fed.  730; 
Vegelan  v.  Gunner  167  Mass.  92;  Coons  v.  Christie,  53  N.  Y.  S.  668, 
24  Miscel.  R.  296;  Matthews  v.  Shankland,  56  N.  Y.  S.  123,  25 
Miscle.  R.  604 ;  McCall  v.  Ratchford,  82  Fed.  41 ;  U.  S.  v.  Sweeny, 
95  Fed.  434;  U.  S.  v.  Elliott,  64  Fed.  27,  1  Am.  &  En?  Dec.  Equity, 
590  and  note;  Coeur  D'Alene  Consol.  Co.  51  Fed.  260;  Hopkins  v. 
Oxley,  49  U.  S.  App.  709,  83  Fed.  912;  Arthur  v.  Oakes,  24  U.  S. 
App.  239,  63  Fed.  310,  25  L.  R.  A.  414;  Cook  Trade  and  Labor 
Combin.  77;  Cogley  on  Strikes  and  Lockouts,  248,  296,  342;  U.  S. 
v.  Patterson,  55  Fed.  605. 


THE     FOURTEENTH     AUEXDUEXT.  473 

Contempt  of  Such  Injunctions. — The  courts  having  held 
that  injunction  lies  in  such  cases  as  those  above  men- 
tioned, of  course  a  violation  of  such  injunction  consti- 
tutes contempt,  as  it  would  in  case  of  violation  of  any 
other  lawful  process.  It  was  strenuously  contended  that 
in  proceedings  for  such  contempt,  the  demand  found  in 
federal  and  state  constitutions  that  no  one  should  be 
deprived  of  life,  liberty  or  property  without  due  process 
of  law,  called  for  jury  trial,  as  the  cases  involved  liberty. 
The  jurisdiction  in  equity  to  award  injunction  being 
granted  or  established  by  decision,  I  am  unable  to  see 
how  the  demand  for  a  jury  can  be  sustained ;  for,  as  abun- 
dantly appears  by  authority,  the  jurisdiction  in  equity 
is  as  old  as  the  hills,  where  it  attaches,  and  equity  pro- 
ceeds without  jury,  the  chancellor  deciding  on  law  and 
fact,  according  to  old  practice,  and  therefore  no  jury  is 
deniandable  in  the  main  injunction  suit.  But  how  as 
to  the  contempt  proceeding,  a  separate  one  from  the  in- 
junction, a  criminal  proceeding?  As  elsewhere  shown 
(p.  162),  for  centuries  before  the  Fourteenth  Amend- 
ment or  of  the  formation  of  the  Union,  all  courts  pos- 
sessed the  inherent  power  to  vindicate  their  authority 
and  jurisdiction  against  contempt  and  resistance,  by  sum- 
mary proceedings  without  jury,  except  where  statute 
otherwise  directed,  as  a  matter  of  necessity,  else  their 
judgments  would  be  mere  vapor.2 

In  a  great  and  historic  case3  growing  out  of  the  cele- 
brated Pullman  sleeping  car  strike  at  Chicago,  the  United 
States  Supreme  Court  considered  this  question,  and  held 

2  State  v.  Frew,  24  W.  Va.  416;  Ex  ptfrte  Robinson,  19  Wall.  505. 

3  In  re  Debs,   158  U.  S.  564. 


474  RIGHTS    AND    PRIVILEGES    UNDER 

that  in  all  courts  there  resides  authority  inherent  to  pun- 
ish for  contempt,  without  intervention  by  any  other  au- 
thority, be  it  court  or  jury,  it  being  sole  judge  of  the  ex- 
istence or  non-existence  of  contempt,  without  jury,  and 
that  there  is  no  constitutional  right  of  jury  trial  in  the 
case.  The  court,  by  Justice  Brewer,  discussed  the  ques- 
tion learnedly.  It  referred  to  the  statement  made  in  a 
prior  case:4  "If  it  has  ever  been  understood  that  pro- 
ceedings according  to  the  common  law  for  contempt  have 
been  subject  to  the  right  of  trial  by  jury,  we  have  been 
unable  to  find  any  instance  of  it."  Reference  was  also 
made  to  another  case  approvingly,  which  held  that  "it 
can  not  be  supposed  that  the  question  of  contempt  of  the 
authority  of  a  court  of  the  United  States,  committed  by 
a  disobedience  of  its  orders,  is  triable,  of  right,  by  a 
jury.'* 

4Eilenbecker  v.  Plymouth,   134  U.  8.  36. 

5  Interstate  Commerce  v.  Brimson,  154  U.  S.  489. 


TED    FOURTEENTH     AMENDMENT.  475 


Chapter  24. 


INTERSTATE  COMMERCE. 

What  has  this  to  do  with  the  Fourteenth  Amendment? 
Strictly  speaking,  nothing.  However^  the  Fourteenth 
Amendment  protects  against  state  action  liberty  and  guar- 
antees the  equal  protection  of  the  law.  In  preceding 
pages  we  have  impressed  the  principle  that  this  guaranty 
covers  the  right  to  labor  and  gain  a  livelihood,  to  buy,  to 
trade,  to  sell,  to  contract;  but  while  these  clauses  are  in 
the  Constitution,  not  only  in  the  Fourteenth  Amendment, 
but  also  in  the  Fifth,  and  thus  these  rights  are  protected 
against  improper  adverse  action  by  both  national  and  state 
governments,  we  must  remember  that  they  are  to  be  read 
along  with  another  important  provision,  that  giving  Con- 
gress power  "To  regulate  commerce  with  foreign  nations, 
and  among  the  several  states,  and  with  the  Indian  tribes." 
Does  the  Fourteenth  Amendment  repeal,  as  to  liberty  of 
contract,  this  provision  incorporated  in  the  Constitution 
eighty-five  years  before  that  amendment?  It  certainly 
does  not,  because  the  amendment  does  not  relate  to  the 
power  of  the  national  government.  Does  the  Fifth 
Amendment  ?  It  plainly  was  not  so  intended.  How  does 
this  commerce  clause  affect  the  right  of  the  citizen  to  con- 


476  RIGHTS    AND    PRIVILEGES    UNDER 

tract,  to  buy  and  sell  and  trade  under  the  liberty  clause  of 
the  Constitution?     The  Supreme  Court  has  said  that  the 
provision  in  the  Constitution  "regarding  the  liberty  of 
the  citizen  is  to  some  extent  limited  by  this  commerce 
clause;  and  the  power  of  Congress  to  regulate  interstate 
commerce  comprises  the  right  to  enact  a  law  prohibiting 
the    citizen  from  entering    into  those    private  contracts 
which  directly  and  substantially,  not  merely  indirectly, 
remotely,    incidentally    and    collaterally,    regulate,    to    a 
greater    or    less  degree,  commerce  among    the  states."1 
Therefore,  when  we  talk  about  the  right  of  contract  under 
the  liberty  clauses  of  the  Constitution  we  must  inquire 
whether  the  contract,  or  transaction,  or  combination  inter- 
feres with  interstate  commerce;  that  is,  directly  and  sub- 
stantially interferes  therewith.     It  thus  becomes  appro- 
priate   to    ask,  What    is    commerce    among    the    several 
states,  commonly  called  interstate  commerce?     For  it  is 
an  exclusive  power  of  regulation  and  legislation  which  the 
Constitution  accords  to  the  nation  over  the  rights  of  states 
and  individuals ;  and  the  anti-trust  act  of  Congress,  July 
2,  1890,  declares:     "Every  contract,  combination  in  the 
form  of  trust  or  otherwise,  or  conspiracy,  in  restraint  of 
trade  or  commerce  among  the  several  states,  or  with  for- 
eign nations,  is  hereby  declared  to  be  illegal.     Every  per- 
son who  shall  monopolize,  or  attempt  to  monopolize,  or 
combine  or  conspire  with  any  other  person  or  persons,  to 
monopolize  any  part  of  the  trade  or  commerce  among  the 
several  states,  or  with  foreign  nations,  shall  be  deemed 
guilty  of  a  misdemeanor."     These  provisions  prevent  cor- 
i  Addyston  Pipe  Co.  v.  United  States,  175  U.  S.  211 


THE    FOURTEENTH     AMENDMENT.  477 

j'orations  and  individuals  from  contracting,  dealing  or 
combining  in  such  manner,  and  in  those  things,  as  will  di- 
rectly and  substantially  affect  prejudicially  such  com- 
merce. What  is  interstate  commerce?  "Interstate  com- 
merce consists  of  intercourse  and  traffic  between  the  citi- 
zens or  inhabitants  of  different  states,  and  includes  not 
only  the  transportation  of  persons  and  property  and  the 
navigation  of  public  waters  for  that  purpose,  but  also  the 
purchase,  sale  and  exchange  of  commodities."2  Such 
being  the  general  principles,  it  will  only  be  necessary  in 
each  case  to  say  whether  the  contract,  combination  or  con- 
spiracy does  interfere  with  interstate  commerce.  In  deter- 
mining this  we  must  have  an  eye  to  rules  of  test  laid  down 
by  the  Supreme  Court  The  cases  involving  this  subject 
are  infinite,  in  state  and  national  courts,  and  it  is  imprac- 
ticable to  give  them  as  instances;  but  the  Supreme  Court 
being  the  guiding  and  controlling  forum  in  this  matter, 
we  may  refer  to  some  of  the  cases  decided  by  it  as  illus- 
trating the  general  principle.  In  the  Addyston  Case  just 
referred  to,  the  court  said  that  under  the  commerce  clause 
of  the  Constitution  Congress  "may  enact  such  legislation 
as  shall  declare  void  and  prohibit  the  performance  of  any 
contract  between  individuals  or  corporations  where  the 
natural  and  direct  effect  of  such  a  contract  shall  be,  when 
carried  out,  to  directly,  and  not  as  a  mere  incident  to  other 
and  innocent  purposes,  regulate  to  any  extent  interstate 
or  foreign  commerce."  The  court  further  said  that  under 
the  act  of  Congress  above  referred  to  "any  agreement  or 

-  Addyston  Pipe  Co.  v.  United  States,  175  U.  S.  211.  See  also 
United  States  v.  E.  C.  Knight  Company,  156  U.  S.  1;  Hopkins  v. 
United  States,  171  U.  S.  578 


478  RIGHTS    AND    PRIVILEGES    UNDER 

combination  which,  directly  operates,  not  alone  upon  the 
manufacture,  but  upon  the  sale,  transportation  and  deliv- 
ery of  an  article  of  interstate  commerce,  by  preventing  or 
restricting  its  sale,  thereby  regulates  interstate  commerce 
to  that  extent,  and  thus  trenches  upon  the  power  of  the 
.  national  legislature,  and  violates  the  statute.  When  the 
direct,  immediate  and  intended  effect  of  a  contract  or  com- 
bination among  dealers  in  a  commodity,  is  the  enhance- 
ment of  the  price,  it  amounts  to  a  restraint  of  trade  in  the 
commodity,  even  though  contracts  to  buy  it  at  the  en- 
hanced price  are  being  made." 

There  have  been  numerous  cases  under  this  act.  The 
Supreme  Court  has  given  it  a  very  broad  and  salutary 
effect.  A  number  of  railroad  companies  formed  an  asso- 
ciation, called  the  Trans-Missouri  Freight  Association, 
andmade  an  agreement  by  which  they  were  to  have  no  com- 
petitive rates  within  a  large  area  of  country,  but  were  to 
charge  those  rates  agreed  upon  by  their  committee.  It  was 
claimed  that  the  act  of  Congress  related  only  to  contracts 
relative  to  the  manufacture  and  sale  of  commodities ;  but 
the  court  held  that  a  contract  to  regulate  rates  of  transpor- 
tation fell  within  the  act,  as  railroads  engaged  in  inter- 
state commerce,  and  their  charges  pertained  thereto,  and 
the  combination  was  held  one  injuring  trade  as  suppress- 
ive  or  depressive  of  competition,  and  that  the  act  of  Con- 
gress applied  to  all  contracts  in  restraint  of  commerce 
without  exception  or  limitation,  and  not  merely  to  those 
in  which  the  restraint  is  unreasonable.3 

In  another  case4  numerous  railroad  companies  running 

3  United  States  v.  Trans-Missouri,  166  U.  S.  290 

*  United  States  v.  Joint  Traffic  Assoc.,  171  U.  S.  505 


THE    FOURTEENTH     AMENDMENT.  479 

from  Chicago  to  the  Atlantic  formed  an  association,  and 
agreed  that  it  should  have  control  over  traffic  passing  cer- 
tain points,  and  fix  rates,  and  that  no  member  of  the  as- 
sociation should  deviate  therefrom.  They  even  agreed 
that  the  managers  should  have  power  to  adopt  a  course 
of  treatment  for  companies  that  were  not  members  of  the 
association  for  departure  from  those  rates.  The  Supreme 
Court  held  the  combination  to  be  contrary  to  the  act  of 
Congress,  and  said  that  Congress  "has  power  to  say  that 
no  contract  or  agreement  shall  be  legal,  which  shall  re- 
strain trade  and  commerce  by  shutting  out  the  operation 
of  the  general  law  of  competition."  In  both  cases  it  was 
claimed  that  the  agreements  were  for  the  mutual  protec- 
tion of  the  property  of  the  companies  from  ruinous  com- 
petition, to  govern  all  by  system  and  regulation  condu- 
cive to  business  success,  and  entirely  consonant  with  Amer- 
ican liberty  of  contract  and  trade  under  the  Constitution, 
and  that  the  act  of  Congress  was  unconstitutional ;  but  the 
validity  of  the  act  was  sustained.  In  a  later  case5  this 
attack  upon  the  act  was  repeated  with  the  same  result  of 
its  upholdment.  In  this  case  a  number  of  companies  pro- 
ducing iron  pipe  combined  in  an  association  to  raise  prices 
over  a  large  territory,  and  to  sell  their  pipe  only  at  prices 
agreed  upon  by  their  joint  committee.  The  court  de- 
clared anew  the  common  law  doctrine  that  all  contracts  to 
raise  prices  and  restrain  trade  and  competition  are  void, 
and  that  as  the  Constitution  gave  Congress  authority  to 
make  all  and  any  laws  touching  interstate  commerce,  it 
might  condemn  and  avoid  any  contract  hurting  the  free- 

6  Addyston  Pipe  Co.  v.  United  States,   175  U.  S.  211 


480  RIGHTS    AXD    PRIVILEGES    UNDER 

dom  of  interstate  commerce.  Thus  the  constitutionality 
of  such  legislation  by^Congress  so  far,  and  only  so  far,  as 
interstate  commerce  is  concerned,  is  settled.  But  it  seems 
that  there  could  be  no  question  of  the  power.  The  act  was 
said  to  be  against  the  liberty  clause  of  Amendment  V; 
but  before  it  came,  such  a  combination  was  void  by  com- 
mon law,  and  as  Congress  is  vested  with  full  law-making 
power  over  the  whole  field  of  interstate  commerce,  it  could 
prohibit  such  contracts,  since  that  amendment  was  not  in- 
tended to  take  away  antecedent  powrer  in  Congress. 

Upon  analogous  principles  we  are  authorized  to  say  that 
state  constitutions  containing  this  liberty  clause  and  the 
Fourteenth  Amendment  do  not  prohibit  states  from  legis- 
lating against  those  combinations,  trusts  and  agreements 
which  had  no  validity  or  recognition  by  law  before  those 
constitutions  were  made.  On  pages  82,  130  and  371  I 
have  stated  the  common  law  doctrine  on  this  subject. 

In  what  has  been  said  it  will  be  seen,  in  outline,  what 
are  the  powers  of  Congress  in  condemning  and  punishing 
contracts,  combinations,  trusts,  conspiracies  and  monopo- 
lies damaging  interstate  and  foreign  commerce.  But 
what  are  the  powers  of  the  states  as  to  their  internal  com- 
merce ?  Just  as  wide  as  those  of  Congress  as  to  interstate 
commerce,  if  not  wider.  The  case  of  Addyston  Pipe 
Company  v.  United  States,  just  cited,  limits  the  power  of 
Congress  to  interstate  and  foreign  commerce,  conceding 
state  power  against  those  things  damaging  trade,  com- 
merce, business,  open  competition,  within  the  states.  On 
page  371  we  showed  how  states  may  deal  with  such  un- 
lawful contracts,  trusts  and  combinations,  citing  notable 
state  cases  defining  what  are  condemnable  contracts,  com- 


TUB     FOURTEENTH     AUEXDUEXT.  481 

binations  and  trusts  hurtful  to  trade  and  public  welfare, 
they  being  practically  in  nature  the  same  as  those  affect- 
ing interstate  commerce ;  but  this  power  in.  both  national 
and  state  legislation  to  restrain  freedom  of  contract  is  not 
illimitable ;  for  if  it  were,  what  contract  would  not  be  sub- 
ject to  its  influence  ?  In  United  States  v.  Trans-Missouri 
Company6  the  declaration  is  very  broad,  that  any  con- 
tract or  agreement  in  restraint  of  commerce  "without  ex- 
ception or  limitation/'  and  not  merely  those  "in  which  the 
restraint  is  unreasonable,"  are  under  the  brand  of  the  act 
of  Congress;  but  in  Addyston  Pipe  Company  v.  United 
States,7  though  the  court  does  not  change  the  real  spirit 
of  former  cases,  yet  it  modifies  the  breadth  of  their  ex- 
pression by  the  emphatic  proposition  that,  to  fall  under 
the  censure  of  the  act,  the  agreement  must  "directly  and 
substantially,  and  not  merely  indirectly,  remotely,  inci- 
dentally, regulate,  to  a  greater  or  less  degree,  commerce 
among  the  states."  To  the  same  effect  is  Hopkins  v. 
United  States.8  To  condemn  the  agreement  it  is  not  nec- 
essary that  it  should  be  the  explicit  intent  to  affect  com- 
merce; for  if  the  "natural  and  direct  effect  of  such  con- 
tract shall  be,  when  carried  out,  to  directly,  and  not  as  a 
mere  incident  to  other  and  innocent  purposes,  regulate  to 
any  extent,  interstate  or  foreign  commerce,"  it  comes 
under  the  act. 

We  must  not  here  lose  sight  of  the  rule  that  as  between 
individuals  each  has  a  right  to  compete  with  the  other,  to 
draw  away  his  custom,  to  outstrip  him  in  the  raco  of  con- 

«  166  U.  S.  290 

-  i:r,  r.  s.  211 

8  171   U.   S.  578 


482  RIGHTS    AND    PRIVILEGES    UNDER 

testation,  and  even  thereby  ruin  his  fellowman;  for  that 
is  freedom  of  business,  of  contract,  of  earning  a  living, 
freedom  of  competition.  Every  one  has  a  right  to  enlarge 
his  business,  even  though  by  means  of  greater  capital, 
superior  facilities  and  capacity  he  monopolizes  business 
and  ruins  his  competitor.  If  the  business  is  lawful, 
even  if  it  overshadow  others,  who  can  prevent  it  in  a  land 
of  constitutional  law,  where  the  constitutions  declare  that 
there  shall  be  liberty  ?  Is  there  too  much  liberty  in  Amer- 
ica ?  If  so,  blame  these  constitutions.  The  mere  opera- 
tion by  lawful  means  of  lawful  business,  however  hurtful 
to  others,  is  not  actionable.  It  may  cause  damage,  but  it 
is  damage  without  violation  of  another's  right.  Whatever 
one  has  a  right  to  do,  another  can  not  have  right  to  com- 
plain of.  If  one  operator  design  to  injure  another  in 
trade,  that  design  will  not  prove  him  to  be  doing  a  wrong. 
"A  lawful  act  is  not  actionable,  though  it  proceeds  from 
malicious  motives."9  Such  a  case  is  one  of  mere  damnum, 
but  it  is  absque  injuria.  We  must  nicely  discriminate  be- 
tween damnum  and  injuria.  We  commonly  use  the  words 
"injury"  and  "damage"  as  equivalents,  but  in  the  rule 
above  stated  these  Latin  words  are  wide  apart.  Damnum 
means  only  harm,  damage;  while  injuria  comes  from  in, 
against,  and  jus,  right,  and  means  something  done  against 
the  right  of  the  party,  producing  damage,  and  has  no  ref- 
erence to  the  fact  or  amount  of  damage.  Unless  a  right 
is  violated,  though  there  be  damage,  it  is  damnum  absque 
injuria.  There  is  no  right  better  established  under  the 

»Cooley,  Torts,  830;  Raycroft  v.  Tayntor,  33  L.  R.  A.  235;  Glen- 
don  Iron  Co.  v.  Uhler,  75  Pa.  St.  467;  Chipley  v.  Anderson,  11  Am. 
St.  R.  370 


THE     FOURTEENTH     AMENDMENT.  433 

Lw  of  business  than  the  right  of  trade  competition.10 
Thus  small  operators,  individual  or  corporate,  have  no 
legal  ground  of  complaint  if  large  operators,  by  means  of 
large  capital,  or  by  union  of  capital,  outstrip  and  sub- 
merge them  in  the  ocean  of  effort.  The  lion  has  stretched 
out  his  paws  and  grabbed  in  more  prey  than  others;  but 
that  is  the  natural  right  of  the  lion  in  the  field  of  pursuit 
and  capture.  Pity  that  the  lion  exists,  his  competing 
animals  may  say,  his  suffering  prey  may  say,  will  say; 
but  natural  law  accords  the  right;  it  is  given  him  by  the 
Maker  for  existence.  But  the  moment  the  arrangements 
of  capitalists  wound  the  public  by  depressing  trade,  in- 
creasing prices  of  things  necessary  for  the  publio,  like 
commodities  and  transportation,  or  suppress  competition, 
then  those  arrangements  assume  another  cast,  and  come  to 
be  against  public  policy.  The  loudest  outcry  against  cor- 
porations and  trusts  comes  from  those  who  are  outstripped 
in  the  field  of  legitimate  competition ;  but  no  free  govern- 
ment can  interfere  between  these  competitors  in  the  de- 
vouring race  of  pursuit  and  capture  characterizing  our 
day.  It  may  be  that  our  humble  forefathers  were  happier 
in  their  frugal  life  than  we,  and  applied  the  short  span  of 
time  given  man  to  better  purpose.  They  moved  from  green 
pasture  to  green  pasture  watching  their  flocks,  their  chief 
dependence  for  food  and  raiment,  and  were  not  worn 
through  every  day's  life  with  the  heavy  yoke  of  the  rail- 
road or  corporation  office,  the  banker's  desk  with  his  ach- 
ing head  and  heart,  the  anxiety  and  burden  of  the  presi- 
dent of  the  great  insurance  and  manufacturing  company. 

i<J  Mogul   S.   S.  Co.  v.  McGregor,  21   Q.   B.  Div.   -544. 


484  RIGHTS    AND    PRIVILEGES    UNDER 

It  may  be  that  the  small  business  concerns  of  days 
that  are  no  more,  when  wants  and  demands  were  few  and 
competition  slight,  were  preferable  to  the  great  business 
concerns  of  our  days.  It  may  be  that  our  fathers  were 
more  honest  and  pure,  free  from  the  temptations  of  wealth 
and  corruption.  It  may  be  that  the  lines  of  the  poet  con- 
tain the  truth. 

Ill  fares  the  land  to  hastening  ills  a  prey, 
Where  wealth  accumulates  and  men  decay. 

Be  this  as  it  may,  evolution  has  been  all  along  forging 
its  toilsome  way.  Population  increased,  demand  increased. 
The  human  mind  thought  on,  became  educated,  scientific. 
It  begat  the  machine,  and  then  one  after  another  ma- 
chine, saving  labor,  increasing  production,  cheapening  ar- 
ticles. In  time  it  came  to  pass  that  man  wanted  to  con- 
quer time  and  distance.  Oceans  were  to  be  crossed  with 
vessels  of  power  to  breast  their  winds  and  waves  and  over- 
come their  great  wastes.  Continents,  with  broad  rivers, 
high  mountains,  were  to  be  spanned  with  railroads  and 
bridges,  that  vast  transportation  from  sea  to  sea,  from 
place  to  place,  might  be  accomplished.  The  continent's 
surface,  the  ocean's  bed,  were  to  know  the  telegraph,  that 
human  thought  and  intelligence  might,  in  the  twinkling 
of  an  eye,  go  from  brother  to  brother  thousands  of  miles 
away.  These  states  of  ours,  so  lately  redeemed  from  the 
wilderness,  had  to  be  chequered  with  railroads,  our  rivers 
and  lakes  supplied  with  steamers,  to  accommodate  the 
teeming  millions  of  people.  In  this  evolution  it  came 
to  pass  that  man  probed  the  bowels  of  earth  with  his  drill 
to  the  depth  of  thousands  of  feet  to  bring  out  the  light 
surpassing  Aladdin's  wonderful  lamp ;  and  he  delved  into 
the  earth  to  produce  the  black  diamond  in  unlimited  quan- 


TUB    FOURTEENTH     AMENDMENT. 

tit  ios  to  give  cheer  to  winter's  fireside,  and  move  the  en- 
gines of  a  world — that  diamond  beside  which  those  of  the 
Indian  strand,  with  all  their  radiance,  become  dim.  The 
national  wealth  had  to  be  builded  up  by  the  nation's  chil- 
dren to  win  in  the  giant  struggle  with  other  powers. 
Armies  of  war,  armies  of  peace ;  navies  of  war,  navies  of 
peace  had  to  be  raised  and  supported.  How  could  these 
mighty  tasks  be  accomplished  by  small  individual  oper- 
ators ?  What  individual  possessed  enough  ?  How  could 
these  things  be  done  without  great  capital  ?  Co-operation, 
which  is  corporation,  union  of  owners  of  capital,  was  in- 
dispensable. This  process  of  business  of  our  day  has  some 
bad  features  about  it,  but  under  the  law  of  compensation 
it  has  many  good  features.  Whatever  indidivuals  may 
think,  it  has  come  to  stay.  It  is  the  product  of  education, 
science,  progress,  civilization,  invention,  machinery.  It 
is  the  child  of  evolution.  Revolutions  never  go  back- 
ward; they  work  their  results  infallibly.  "The  dead  na- 
tions rise  no  more."  Evolution  never  retraces  its  steps, 
because  it  is  the  energy  of  things.  Like  Longfellow's 
poetic  youth,  it  bears  the  flag  inscribed  Excelsior,  and 
climbs  the  Alps.  It  is  the  instrumentality  of  God,  and 
can  not  fail.  In  this  terrible  march  of  pursuit  some  will 
perish  by  the  way,  "weary  with  the  march  of  life."  It 
is  the  law  of  the  survival  of  the  fittest  Who  can  help  this 
death  on  the  march?  Who  can  save  the  failing  ones? 
Who  stretch  forth  the  helping  hand  ?  Who  help  them  to 
successful  capture  ?  !N"o  free  government  can.  If  it  does 
so,  it  arrests  the  step  of  others  equally  entitled  before  the 
law  with  the  failing  ones.  When,  and  only  when,  these 
gladiators  in  the  arena  so  work  as  to  affect  the  common- 


RIGHTS    AND    PRIVILEGES    UNDER 

wealth,  the  public,  not  individuals,  can  the  state  inter- 
vene; only  when  they  combine  to  raise  prices,  to  restrain 
trade  as  it  concerns  the  entire  public,  or  represses  com- 
petition. Then  the  state  can  consistently  with  the  Consti- 
tution step  in. 

Above  we  have  given  cases  laying  down  general  prin- 
ciples pertinent  to  this  subject.  They  will  point  the  way 
as  lamps  lighted  by  the  highest  authority.  It  may  not  be 
without  benefit  to  cite  some  cases  in  which  it  was  held 
that  government  could  not  interfere  with  this  great  right 
of  contract  under  the  word  "liberty"  found  in  the  state 
and  federal  constitutions.  A  number  of  persons  doing 
business  at  stockyards,  some  in  Kansas,  some  in  Missouri, 
in  receiving  stock  from  various  states,  feeding  it  and  sell- 
ing it  for  compensation,  formed  a  voluntary  association, 
and  by  its  rules  forbade  its  members  buying  stock  from  a 
commission  merchant  in  Kansas  City  not  a  member  of  the 
association,  fixed  commissions  for  selling  the  stock,  pro- 
hibited the  employment  of  agents  to  solicit  consignments, 
except  upon  stipulated  salary,  and  prohibited  any  mem- 
ber from  transacting  business  with  any  person  violating 
the  rules  of  the  association.  Each  member  was  left  free 
to  carry  on  his  individual  business.  The  Supreme  Court 
held  that  the  business  was  not  interstate  commerce,  and 
was  not  contrary  to  the  act  of  Congress  above  referred 
to.11  In  another  case12  the  association  was  very  like  the 
one  just  stated.  The  main  difference  was  that  the  mem- 
bers of  the  association  in  the  case  now  referred  to  were 
purchasers  of  cattle,  while  those  in  the  former  case 

11  Hopkins  v.  United   States,   171   U.   S.   578. 
*  12  Anderson  v.  United  States,  171  U.  S.  604. 


THE    FOURTEENTH     AMENDMENT.  437 

were  commission  merchants  selling  them.  The  object  of 
the  association  was,  not  for  pecuniary  profit,  but  to  pro- 
tect all  interests  connected  with  buying  and  selling  live 
stock  at  the  Kansas  City  stock  yards,  and  to  cultivate 
manly  conduct  towards  each  other,  and  give  dignity  to 
;jard  traders.  The  rules  provided  that  the  association 
would  not  recognize  any  yard  trader,  unless  a  member  of 
it,  and  that  no  member  should  employ  any  person  to  buy  or 
sell  cattle  unless  he  held  a  certificate  of  membership,  and 
that  no  member  should  be  allowed  to  pay  any  order  buyer 
or  salesman  any  sum  of  money  as  a  fee  for  buying  cattle 
from  or  selling  cattle  to  such  party.  The  Supreme  Court 
did  not  feel  called  upon  to  decide  whether  the  defendants 
were  engaged  in  interstate  commerce,  because  if  they  were 
the  agreement  was  not  one  in  restraint  of  that  trade,  nor 
was  there  any  combination  to  monopolize,  or  attempt  to 
monopolize,  such  trade  within  the  meaning  of  the  act  of 
Congress,  because  it  did  not  come  within  the  meaning 
of  the  statute,  which  required  that  the  direct  effect  of  an 
agreement  or  combination  must  be  in  restraint  of  trade, 
but  was  simply  entered  into  with  the  object  of  properly 
and  fairly  regulating  the  transaction  of  the  business  in 
which  the  parties  were  engaged 

The  American  Sugar  Refining  Company  owned  a  ma- 
jority of  the  plants  engaged  in  the  business  of  refining 
siiirar,  and  acquired  by  purchase  four  other  refineries,  giv- 
ing it  a  practical  monopoly  of  the  business.  It  was  held 
that  the  transaction  created  a  monopoly,  but  it  did  not 
concern  interstate  commerce,  and  was  not  a  violation 
of  the  act  of  July  2,  1890,  because  to  fall  under  that 
act  the  transaction  must  create  a  monopoly  in  interstate 
commerce,  and  not  merely  a  monopoly  in  the  manufacture 


488  RIGHTS    AND    PRIVILEGES    UNDER 

of  a  necessary  article  of  life,  and  this  although  the  sugar 
was  to  be  sent  into  other  states.13  Was  this  monopoly 
unlawf ul  at  common  law  as  an  act  of  engrossment  ?  Was 
it  violative  of  state  law?  The  corporation  did  not  com- 
bine with  others  to  increase  prices;  but  simply  bought 
in  other  manuf  acturies.  Why  had  it  not  the  right  to  do 
so,  even  though  the  result  was  to  control  the  supply? 
You  may  say  that  as  it  could  not  combine  with  other  com- 
panies to  control  prices,  it  could  not  indirectly  effect  the 
same  result  by  buying  them  out;  but  you  must  regard 
the  right  of  purchase  of  those  things  in  the  line  of  its 
proper  corporate  business. 

Some  of  the  agreements  or  arrangements  which  have 
been  held  not  to  fall  under  the  federal  act  would  doubtless 
be  condemned  as  illegal  and  contrary  to  the  common  law 
of  the  states  as  suppressing  competition,  raising  prices 
and  monopolizing  trade.  I  have  cited  a  number  of  lead- 
ing state  cases  reflecting  state  decisions,  commencing  on 
page  372,  touching  this  subject.  I  refer  to  the  dissent 
of  Justice  Harlan  in  the  case  of  United  States  v.  E.  C. 
Knight  Company,  just  cited,  in  which  he  cites  numerous 
state  cases  bearing  on  this  subject.  The  case  of  Richard- 
son v.  Buhl 14  is  a  notable  case  where  a  corporation  for 
the  manufacture  of  matches  was  organized  under  an  agree- 
ment to  buy  out  other  concerns  engaged  in  the  same  line, 
so  as  to  control  the  business  by  means  of  large  capital 
and  effect  a  monopoly.  It  was  held  void.  The  case  of 
Morris  Run  Coal  Company  v.  Barclay  Company15  is  an- 

is  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1. 
i*  77  Mich.  632. 
1568  Pa.  St.  173. 


TUB     FOURTEENTH     AMENDMENT.  489 

other  notable  case  holding  void  an  agreement  between 
coal  companies  dividing  between  themselves  coal  territory, 
because  of  their  power  under  it  to  monopolize  the  mar- 
ket in  coal.  The  cases  are  infinite  on  this  subject  and 
variant.  It  would  answer  no  purpose  to  detail  them 
here.  Only  general  principles  can  be  stated.  The  cases 
cited  will  point  the  way. 

The  commerce  clause  of  the  Constitution  gives  the 
national  government  original  and  plenary  power  to  leg- 
islate upon  the  subject  of  interstate  commerce,  and  the 
states  are  utterly  without  power  to  regulate  such,  com- 
merce by  placing  any  burdens  upon  it,  by  restricting  it,  as 
held  in  many  decisions.16  This  commerce  clause  thus  op- 
erates in  some  measure  to  restrict  the  police  powers  of 
the  state,  as  it  does,  to  some  extent,  the  right  of  contract. 
This  is  not  a  subject  properly  discussable  in  a  work  treat- 
ing of  the  rights,  privileges  and  immunities  under  the 
Fourteenth  Amendment.  Just  how  far  the  police  power 
of  the  states,  which  was  originally  full  and  unlimited, 
has  been  curtailed  by  the  commerce  clause,  is  a  question 
of  great  nicety,  and  the  subject  of  many  complicated  Su- 
preme Court  decisions.  The  subject  of  when  transitus 
of  goods  from  state  to  state  begins  and  ends,  so  as  to  be 
still  under  federal  protection  and  above  state  action;  the 
question  as  to  what  are  commodities  merchantable  and 
lawful  subjects  of  interstate  commerce;  when  property 
sent  from  one  state  to  another  ceases  to  be  in  the  original 
package  of  consignment  and  becomes  commingled  with 
the  great  mass  of  property  within  a  state  and  subject  to 

is  Brimmer  v.  Rebman,  138  U.  S.  78,  and  authorities  there  cited. 


490  RIGHTS    AND    PRIVILEGES    UNDER 

its  legislation,  because  no  longer  under  federal  protection ; 
these  and  cognate  questions  will  not  be  discussed  in  this 
work,  because  not  pertinent  to  the  Fourteenth  Amend- 
ment. I  will,  however,  call  attention,  for  ready  reference, 
to  many  authorities  bearing  on  this  question,  to  the  able 
opinion  of  Mr.  Justice  Brown  in  the  late  case  of  Austin  v. 
Tennessee,  holding  that  tobacco  must  be  recognized  as  a 
legitimate  article  of  interstate  commerce,  though  it  may, 
to  a  certain  extent,  be  within  the  police  power  of  a  state, 
and  further  holding  that  a  state  act  restricting  or  pro- 
hibiting the  sale  of  cigarettes  is  within  the  state  power 
of  police  and  not  contrary  to  the  commerce  clause,  pro- 
vided it  does  not  apply  to  original  packages  and  makes 
no  discrimination  against  cigarettes  imported  from  other 
states,  and  provided  there  is  no  doubt  that  the  statute 
is  designed  for  protection  of  public  health.  The  court 
held  that  packages  of  cigarettes,  each  3  by  1  1-2  inches, 
containing  ten  cigarettes,  without  any  shipping  address 
on  such  packages,  when  they  are  taken  from  a  loose  pile 
of  such  packages  at  the  factory  by  an  express  company 
in  a  basket  which  it  furnished,  in  which  it  carries  them 
and  from  which  it  empties  them  on  the  counter  of  a  con- 
signee in  another  state,  do  not  constitute  original  pack- 
ages of  interstate  commerce,  but  if  there  is  any  original 
package  in  the  shipment,  it  is  the  basket.17  Therefore 
these  packages  fell  under  state  law,  as  mingled  with  the 
mass  of  the  property  of  the  state,  and  the  state  law  pro- 
hibiting their  sale  was  valid  as  applied  to  them.  The 

17179  U.  S..343,  21  Sup.  Ct.  132.     Also  May  v.  N.  Orleans,  178 
U.  S.  496,  20  Sup.  Ct.  976. 


THE     FOURTEENTH     AMENDMENT.  49! 

court  was  greatly  divided.  I  call  attention  to  the  able 
majority  and  minority  opinions  as  a  lucid  discussion  of 
this  intricate  subject,  and  as  referring  to  many  cases 
shedding  full  light  upon  it 

Afl  stated  a  few  pages  back,  it  is  not  within  the  pur-- 
view  of  a  work  treating  of  rights,  privileges  and  immuni- 
ties under  the  Fourteenth  Amendment  to  discuss  in  detail 
the  elaborate  subject  of  interstate  commerce;  but  in  con- 
nection with  what  has  been  said  in  this  chapter  it  may  be 
stated,  in  a  few  words,  that  a  state  can  not  prohibit  the 
carriage  into  it,  or  the  sale  in  it,  in  original  packages  of 
shipment  or  transportation,  of  articles  or  commodities  that 
are  legitimate  subjects  of  commerce.  A  state  can  not  do 
so,  directly  or  indirectly,  by  express  prohibition,  by  taxa- 
tion, by  inspection  laws,  or  by  any  other  process  which  re- 
stricts or  burdens  the  freedom  of  interstate  commerce. 
Articles  inherently  worthless  and  not  merchantable  prop- 
erty, or  articles  calculated  to  spread  disease  or  detrimental 
to  the  public  and  unfit  for  human  use,  are  not  protected  by 
the  commerce  clause.18 

The  power  of  Congress  as  to  foreign  and  interstate 
commerce  is  not  simply  paramount,  but  it  is  exclusive  over 
that  of  the  states.  Mere  police  regulations  of  states, 
though  somewhat  affecting  commerce,  are  sustained;  but 
not  if  they  regulate  commerce  between  states  or  with  other 
nations.19 

is  In  re  Rahrer,  140  U.  S.  545;  Austin  v.  Tennessee,  179  U.  S. 
343.  21  Sup.  Ct.  132;  Leisy  v.  Hardin,  135  U.  S.  100;  Schollen- 
berger,  v.  Pennsylvania,  171  U.  S.  1. 

19  Leisy  v.  Hardin,  135  U.  S.  100;  Covington  Bridge  v.  Kentucky, 
1.14  U.  S.  204. 


, 

V>0 


TABLE  OF  CASES  CITED. 


Page. 

Abbot  v.  National  Bank  (179  U.  S.  — ) 119 

Ableman  v.  Booth    (21  How.  506) 51,  404,  439,  445,  451 

Abraham  v.  Casey  ( 179  U.  S.  210) 179,  395,  396 

Adams  v.  Brennan    ( 177  111.   194) 375 

Adams  v.  Cole  (95  Mo.  501 ) 258 

Adams  Express  Co.  v.  Ohio  (165  U.  S.  194) 305,  353 

Addyston  Pipe  Co.  v.  United  States  (175  U.  S.  211), 

129,  130,  133,  373,  377,  476,  477,  479,  480,  481 

Ah  Yup,  In  re  (5  Sawy.  (U.  S.)   155) 32,  33 

Aldrich  v.  Blatchford    (56  N.  E.   700) 250 

Aiferitz  v.  Borgwardt   ( 126  Cal.  201 ) 412 

Allen  v.  Allen    (16  L.  R.  A.  646) 412 

Allen  v.  Hanks    (136  U.   S.   300) 274 

Allen  v.  State    (166  U.  S.   138) 287 

Allgeyer  v.  Louisiana   (165  U.  S.  578 ) 115,  171 

Alsberry  v.  Hawkins    ( 33  Am.  Dec.  546) 21 

American  Ins.  Co.  v.  Canter   ( 1  Pet.  511 ) 36 

American  Pub.  Co.  v.  Fisher  ( 166  U.  S.  464) 39,  289 

American  Sugar  Co.  v.  Louisiana   (179  U.  S.  89) 

323,    339,   422,   423,   426,   430 

Anderson  v.  Anderson    (57  N.  E.  333) 254 

Anderson   v.   Company    ( 62    Fed.    46) 89 

Anderson  v.  Henry  (45  W.  Va.  319) 143,  161 

Anderson  v.  United  States  (171  U.  S.  604) 486 

Andrews  v.  Swartz   (156  U.  S.  272) 289,  328,  429 

Apex  Trans.  Co.  v.  Garbade   ( 32  Ore.  582 ) 295 

Arkadelphia  v.  Clark   (27  Am.  &  Eng.  Corp.  Cas.  586) 217 

Armstrong  v.   Morrill    (14   Wall.    120) 262 

Arndt  v.  Griggs    (134  U.  S.  316) 179,  252,  258,  396 

Arrowsmith   v.   Harmoning    (118   U.    S.    194) ; 429 

Arthur  v.  Oakes  (63  Fed.  310) 472 

Association  v.   Crescent  City  Co.    ( 1   Abb.   398 ) 112 

Astor  v.  New  York   (62  N.  Y.  580) 354 

493 


494  TABLE    OF.  CA8E8. 

Page. 

Asylum  v.  New  Orleans   (105  U.  S.  362) 366 

Atchison,  Topeka  &  S.  Fe  v.  Campbell   (59  Pac.  1051 ) 241 

Atchison,  Topeka  &  S.  Fe  Co.  v.  Clark    (60  Kan.  826) 335 

Atchison,  Topeka  &  S.  Fe  Co.  v.  Mathews    (174  U.  S.  96), 

180,  325,  335,  338 

Atlantic  City  R.  Co.  Re    (164  U.  S.   633) 448 

Attorney  General  v.  Jochim    (99  Mich.   358) 147,   165 

Austin   v.    State    (101    Tenn.    563) 213 

Austin  v.  Tennessee   (179  U.  S.  343) 176,  178,  213,  490,  491 

Avery  v.  Popper  ( 179  U.  S.  305) 423 


B. 

Bacon  v.  Texas    (163  U.  S.  207) 400,  404,  421,  422 

Backus  v.   Fort  Street  Co.    (169  U.   S.   557), 

164,  294,  312,  408,  467,  468 

Bagwell  v.  Atlanta   (109  Ga.  611 ) .239 

Baldwin  v.  Franks  ( 120  U.  S.  678 ) 462 

Baldwin  v.  Kansas    (129  U.  S.  52) 430 

Ballou  v.   Hudson    ( 13   Grat.   672 ) 264 

Baltimore  &  Ohio  Railroad  Co.  v.  Baugh    (149  U.  S  368) 407 

Baltimore  &  Ohio  Railroad  Co.  v.  P.  W.  K.  Co.  (17  W.  Va.  813), 

165 

Banholzer  v.  New  York  Ins.  Co.   (178  U.  S.  402) 422,  424 

Bank  v.  County  of  Yankton  (101  U.  S.  129 ) 34,  39,  79 

Bank  v.  Mayor  (7  Wall.  16) 159 

Bank  v.  New  York  City  (2  Black.  620) 150,  159 

Bank  v.   Sarlis    ( 29  Am.   St.  R.   185 ) 149,  216 

Bank  v.  State   (24  Am.  Dec.  517 ) 142 

Barbier  v.  Connolly  (113  U.  S.  27)  .  .107,  168,  215,  228,  320,  332,  428 

Barclay  v.  Barclay   ( 184  111.  471 ) 162,  272,  286 

Barings  v.  Dabney   ( 19  Wall.  1 ) 294 

Barker  v.   Bigelow    ( 15   Gray   130) 345 

Barlow  v.  Daniels    (25  W.  Va.  512) 145,  286 

Bauman  v.  Ross   (167  U.  S.  548 ) 164 

Baumgartner  v.  Hasty   (8  Am.  &  Eng.  Corp.  Cas.  353) 216 

Bauserman  v.  Blunt    (147  U.  S.  647 ) 408 

Beardly  v.  New  York,  L.  E.  &  W.  Co.  ( 162  N.  Y.  230) 195 

Beatty  v.  Fenton   (135  U.  S.  244) 404 

Beck  v.  Magillis    (9  Barb.  35) 29 

Beer  Co.  v.  Massachusetts   (97  U.  S.  25) 169,  170,  178,  369 

Bells  Gap  R.  R.  Co.  v.  Pennsylvania  (138  U.  S.  232), 

150,  152,  324,  339 

Belmont  Bridge  v.  Wheeling   ( 138  U.  S.  287 ) 362 

Bennett  v.    Davis    (37    Atl.    864) 287 


TABLE    OF    CASES.  495 

Page. 

Bergman  v.  Backer   (157  U.  S.  655) 290,  418,  434 

Binghampton  Bridge  Case    ( 3  Wall.  51 ) 350 

Bishop  v.  American  Preserve  Co   ( 157  111.  284) 372 

Bissell  v.  Davisson   (29  L.  R.  A.  251 ) .225 

Bissell  v.  Davisson  (65  Conn.  183) 94 

Black  v.  Jackson  (177  U.  S.  349) 40,  286 

Black  Hawk  v.  Springer   ( 58  Iowa  417 ) 308 

Black  v.  Smith   ( 13  W.  Va.  780) 270 

Blair  v.   Ridgely    (97   Am.   Dec.   248) 108 

Blake,  In  re    (175  U.  S.   114) 447 

Blake  v.  McClung   (172  U.  S.  239) 70,  350 

Blanchard  v.  Raines   (20  Fla.  467 ) 286 

Board  v.  Caldwell    ( —  Ohio  — ) 225 

Board  v.  Louisiana    (179  U.  S.  622 ) 397,   399 

Bolln  v.  Nebraska  (176  U.  S.  83) 37,  55,  144,  290,  295 

Bolt  v.  Stennett  (8  L.  R.  A.  606) 183 

Boom  Company  v.  Patterson   (98  U.  S.  403) 465,  468 

Boske  v.  Comingore    ( 177   U.  S.  459) 442 

Boswell  v.  Otis   (9  How.  348) 253,  263 

Bowler  v.  Huston    ( 30  Grat.  266) 256 

Boyd  v.  Alabama    (94  U.  S.  645) 409 

Boyd  v.  Nebraska   (143  U.  S.  159 ) 19 

Boyd  v.  Thayer   (143  U.  S.  135) 32,  37,  39 

Boyle  v.  Zacharie    ( 6   Pet.   648 ) 393 

Bracewell  v.  People   ( 147  111.  66) 113,  206 

Bradwell  v.  United  States   ( 16  Wall,  130) 56,  81 

Brass  v.  Stoeser    (153  U.  S.  391 ) 193 

Brewer  v.  Marshall  (19  N.  J.  Eq.  537 ) .132 

Brewster  v.  People    ( 183  111.   143) 311 

Breyer  v.  State   ( 102  Tenn.  103) 214 

Bridge  Company  v.  County   (41  W.  Va.  658 ) 352 

Bridge  v.  United  States    (105  U.  S.  470) 365* 

Brimmer  v.  Rebman    (138  U.  S.  78) 489 

Brine  v.  Insurance  Company   (96  U.  S.  634) 394,  395 

Bristol  v.  Washington  Co.    (177  U.  S.  133) 302,  304 

Brodis  v.  Brodis    ( 86  Fed.  R.  951 ) 32 

Bronson  v.  Kinsie    (1  How.  311) 294,  295 

Brown  v.  Dexter    ( 66   Cal.   39 ) 26 

Brown,  Ex  parte  (70  Am.  St.  R.  743) 81 

Brown  Company  v.  Hunt   ( —  Iowa  39,  L.  R.  A.  291 ) 350 

Brown  v.   Maryland    ( 12   Wheat.    419 ) 159 

Brown  v.  New  Jersey  ( 175  U.  S.  172) 144,  282,  290,  293  295 

Brown  v.  Schilling    (9  Md.  82) 29 

Brown  v.  Smart   (145  U.  S.  454) 415 

Brunswick  v.  Bank    (99  Fed.  635) 396 

Bucher  v.  Cheshire  (125  U.  S.  555) 393,  394,  396,  417,  428 


496  TABLE    Of    VAXES. 

Page. 

Budd  v.  New  York    (143  U.  S.  517 ) 128,  193,   194 

Bullock   v.   State    ( 47   Atl.   62 ) 328 

Bunnel  v.  Bunnel,   (25  Fed.  214) 253,  254,  263 

Burdett  v.  Allen    (35  W.  Va.  347 ) 226 

Burgess  v.  Seligman  (107  U.  S.  20) 406,  416 

Burlington  v.  Swartzman  (52  Am.  K.  571 ) 148 

Burris,   In  re    (136  U.   S.  586) : -.439 

Bush  v.  Kentucky   (107  U.  S.  110) 329,  427 

Butcher's  Union  Co.  v.  Crescent  City  Co.  (Ill  U.  S.  755) 111,  115 

Butler  v.  Eaton   (141  U.  S.  240) 340 

Butler  v.  Toledo    (5  Ohio  St.  225) 354 

Butz  v.  City    (8  Wall.  587 ) 392 

Byers  v.  McAuley  (149  U.  S.  608) 402 


C 

Caldwell   v.   Texas    (137    U.    S.   692 ) 418 

Camden  Co.  v.  Stetson    (177  U.  S.  173) 239 

Campbell  v.  Evans    (45  N.  Y.  356) 264 

Campbell  v.  Holt   (115  U.  S.  620) 275 

Capital  Traction  Co.  v.  Hof  ( 174  U.  S.  1 ) 37,  145 

Carpenter  v.  Bailey   (60  Pac.  162) 264 

Carter  v.   Bennett    ( 6   Fla.   214 ) 265 

Carter  v.  Texas   (177  U.  S.  442) 83,  328 

Casey  v.  Cincinnati  Typo.  Union   (45  Fed.  135) 472 

Cass  Farm  v.  Detroit    (83  N.  W.   108 ) 165 

Castillo  v.  McConnico    (168  U.  S.  682) 158,  166,  283 

Cecil  v.  Clark    (44  W.  Va.  660) 286 

Central  Land  Co.  v.  Laidley   (159  U.  S.  103) 

283,  349,  399,  400,  415 

Central  Loan  Co.  v.  Campbell   ( 173  U.  S.  84) 335 

Central  Nat.  Bank  v.  Stevens    (169  U.  S.  432) 427 

Central  Railroad  v.  Wright    (164  U.   S.   327 ) 363 

Champaign  Co.  v.  Church   (62  Ohio  St.  318) 225 

Chappell,  etc.  Co.  v.  Sulphur  Mines  Co.   (172  U.  S.  474) 279 

Charles  v.   City    (98   Fed.    166) 291 

Charles  River  Bridge  v.  Warren  Bridge  (11  Pet.  420) 137,  353 

Charlotte,  etc.  Co.  v.  Gibbs   (142  U.  S.  386) 180 

Cheek  v.  City  of  Aurora  (4  Am.  &  Eng.  Corp.  Cas.  512) 216,  217 

Cheely  v.  Clayton    ( 110  U.  S.  701 ) 253 

Cherokee  Nation  v.  Kansas  Railroad  (135  U.  S.  641)  .  .467,  468,  469 

Chesapeake  &  O.  Co.  v.  Commonwealth   (51  S.  W.  160) 356 

Chesapeake  &  O.  Co.  v.  Kentucky   (179  U.  S.  388) 87,  88,  356 

Chesapeake  &  0.  R.  R.  Co.  v.  Miller   (19  W.  Va.  408) 354,  368 

ce  &  O.  R.  R.  Co.  v.  White   (111  U.  S.  134) 426 


TABLE   OF   CA8E8.  497 

Page. 

Cheever  T.  Wilson    (9  Wall.  108) 253,  254 

Chicago,  B.  &  Q.  Co.  v.  Chicago  (166  U.  S.  224), 

97,  163,  178,  282,  295,  319,  467,  469,  470 

Chicago  v.  Iowa   (94  U.  S.  155) 185,  187,  192 

Chicago,  etc.  Co.  v.  Minnesota  (134  U.  S.  418) 192,  194,  197,  342 

Chicago,  B.  &  Q.  Co.  v.  Nebraska  (170  U.  S.  57) 336,  399 

Chicago  Life,  etc.  Co.  v.  Needles   (113  U.  S.  574) 279 

Chicago,  etc.  Co.  v.  People   ( 181  111.  270) 211 

Chicago,  etc.  Co.  v.  Sturm   ( 174  U.  S.  710) 266 

Chicago  Co.  v.  Wilman    ( 143  U.  S.  339 ) 188 

Chinese  Exclusion  Case  (130  U.  S.  581 ) 35,  36,  37 

Chipley  v.  Anderson   (11  Am.  St.  R.  370) 482 

Citizens'  Bank  v.  Owensboro    (173  U.  S.  636) 365,  366,  369 

Citizens'  Security  Co.  v.  Wheeler   (48  Md.  455) 348 

City  of  Atlanta  v.  Stein   (111  Ga.  318) 375 

City  of  Cleveland  v.  C.  C.  &  St.  L.  Co.   (93  Fed.  119) 216,  217 

City  of  Chicago  v.  Netcher   (183  111.  104) 310 

City  v.  Netcher    (55  N.  E.  707 ) 292 

City  v.  Manhattan   ( 178  111.  372) 225 

City  v.  Railroad  Company  ( 93  Fed.  119) 148 

City  v.  Smyth   (60  Pac.  1120) 222 

City  v.  Trotter   (32  Am.  &  Eng.  Corp.  Cas.  372) 213 

City  of  Richmond  v.  Richmond  &  D.  R.  Co.  (21  Grat.  604)  .  .354,  355 
Civil  Rights  Cases   (109  U.  S.  3), 

46,  84,  88,  93,  108,  116,  330,  385,  389,  444,  454,  459 

Claflin  v.  Houseman    (93  U.  S.  130) 404 

Claiborne  Co.  v.  Brooks  (111  U.  S.  400) 396 

Claybrook  v.  City  (23  Fed.  634) 92 

Clarke  v.  Clarke    (178  U.  S.  186) 179,  395 

Clark,  Ex  parte  ( 100  U.  S.  399) 78 

Clark  v.  Graham   (6  Wheat.  577) 395 

Clark  v.  Kansas  City    (176  U.  S.  114) 339 

Clark  v.  Maryland  Institute    (87  Md.  643) 92 

Clarksburg  Electric  Co.  v.  City  of  Clarksburg   (47  W.  Va.  — ),        1 

364 

Clark's  Estate,  Tn  re  (46  Atl.  127) 333 

Clark  v.  Russell   (97  Fed.  900) 179,  343 

Coe  v.  Errol   (116  U.  S.  517 ) 170,  303 

Coeur  D'Alene  Consol.  Co.  v.  Miners'  Union  (51  Fed.  260) 472 

Cofer  v.  Riseling   (55  S.  W.  235 ) 233 

Coger  v.  Coger   ( 35  S.  E.  823) 253.  263 

Cohens  v.  Virginia    (6  Wheat.  264) 47,  49,  51,  404,  426 

Cole  v.  Cunningham   ( 133  U  .S.  107 ) 256 

Cole  v.  Kegler  ( 64  Iowa  59) 174 

Cole  v.  La  Grange  ( 113  U.  S.  1 ) 160 

Collector  v.  Day  (11  Wall.  113) 159,  384 


498  TABLE    OF    CASES. 

Page. 

Collins  v.  State    (60  S.  W.  42) 328 

Columbit  Bank  v.  Okely   ( 4  Wheat.  235 ) 141 

Columbus,  etc.  Co.  v.  Wright    (151  U.  S.  470) 349 

Comitis  v.  Parkson    (56  Fed.  556) 28 

Com.  Bank  v.  Buckingham    ( 5  How.  317 ) 399 

Commonwealth  v  Berry  ( 155  Mass.  117 ) 205 

Commonwealth  v.  Byrne    (20  Grat.   165) 154,   158 

Commonwealth  v.  Charity  Hospital    (47  Atl.  980) 310 

Commonwealth  v.  Douglass    ( 100  Ky.  116) 178,  181 

Commonwealth  v.  Hubey   ( 172  Mass.  58 ) 213 

Commonwealth  v.  Roberts    ( 155  Mass.  281 ) 229 

Commonwealth  v.  Sheckles    (78  Va.  36 ) 301 

Conner  v.  Elliott   ( 18  How.  591 ) 45,  68 

Consol.  Coal  Co.  v.  People   (186  111.  134) 211 

Cousol.  Steel  Wire  Co.  v.  Murry  (80  Fed.  811 ) 472 

Contzen  v.  United  States  (179  U.  S.  191 ) 37 

Converse,  In  re  (137  U.  S.  624 ) 385 

Cook  v.  Harris   (61  N.  Y.  448) 148,  216 

Cook  v.  Hart  ( 146  U.  S.  183) 438,  445 

Cook  v.  State   (110  Ala.  40) 219 

Coons  v.  Christie  (53  N.  Y.  S.  668 ) 472 

Cooper  v.  Reynolds   ( 10  Wall.  308) 252,  257 

Cope  v.  Cope    (137   U.   S.   682) 39 

Corbett  v.  Nutt  ( 10  Wall.  464) 247 

Corfield  v.  Coryell    (4  Wash.  C.  C.  101 ) 63,  68 

Corn  v.  Erie  Co.    (1  Am.  R.  399) 108 

Cory  v.  Carter    ( 14  Ind.   337 ) 91 

Covington  Bridge  Co.  v.  Kentucky  (154  U.  S.  204)          219,  360,  491 

Covington  v.   Sanford    (164  U.  S.  578) 43,   351 

Cox  v.  Gilmer    (88   Fed.   343) 146 

Coy,  In  re   (127  U.  S.  731 ) 78 

Crandall  v.  Nevada  (6  Wall.  35) 67,  150,  159,  352 

,  Crenshaw  v.  Slate  River  Co.   ( 6  Rand.  215) 360 

Cross  v.  Harrison   ( 16  How.  180) 39,  41 

Crowley  v.  Christensen    (137  U.  S.  86) 224,  299,  300 

Crump  v.  Commonwealth    (84  Va.  927 ) 472 

Cuddy    Case    (131    U.    S.    280) 439 

Gumming  v.  County  Board  (175  U.  S.  528 ) 92 


D 

Danville  v.  Pace   (25  Grat.  1 ) 294,  307,  313 

Darcy   v.    Allen    (11    Coke   84) 371 

Dartmouth  College  Case  (4  Wheat.  518) 140,  359,  360,  361,  366 

Davidson  v.  New  Orleans    (96  U.  S.  97), 

12,  45,  139,  140,  145,  146,  164 


TABLE    OF    CASES.  499 


Davis   v.    Beason    (133    U.    S.    333) 120 

Davis  v.  Burke  ( 179  U.  S.  399) 54,  144,  422,  430 

Davis  v.  Massachusetts    (167  U.  S.  43) 166 

Davis  v.  Settle   (43  \V.  Va.  19) 286 

Davis  v.  Texas  ( 139  U.  S.  651 ) 421,  430 

Dawson  v.  Lee   (83  Ky.  49) 91 

Dayton  v.  Barton   (53  S.  W.  970) 

D.-bman  v.  Southern  Bell  Tel.  Co.   (36  S.  E.  269) 427 

Debs,  In  re  (158  U.  S.  564) 129,  147,  162,  286,  473 

Debs  v.  United  States   (64  Fed.  724) 472 

Decie  v.  Brown   ( 167  Mass.  290) 224 

Deems  v.  Baltimore  (80  Md.  164) ^ . .  .223 

Dent  v.  West  Virginia   (129  U.  S.  114) 81,  143,  199,  239 

Denver  v.   Bach    (58   Pac.    1089) 94 

Denver  v.  Mullen    (4  Am.  &  Eng.  Corp.  Cas.  304) 217 

Dequasie  v.  Harris    ( 16  W.  Va.   345 ) 166 

DeVaughn  v.  Hutchinson   (165  U.  S.  566) 395 

Dewey  v.  Des  Moines  (73  U.  S.  193) 164,  250 

Dey,  Matter  of    (9  N.  J.   Ch.   181) 308 

Diamond  Match  Co.  v.  Roeber  ( 106  N.  Y.  473) 377 

Dick  Duncan  v.  McCall   (139  U.  S.  449) 396,  430,  434 

Dickinson  v.  Hoomes   (8  Grat.  410) 250,  265 

Distilling  Co.  v.  People  (156  111.  448) 372 

Dobbins  v.  Erie  County  ( 16  Pet.  435 ) 159 

Dodge  v.  Woolsey   ( 18  How.  331 ) 366 

Donnell  v.   State    (48   Miss.   661 ) 459 

Dorsey  v.  Brigham   (52  N.  E.  303) 32 

Douglas  v.  Commonwealth   (97  Va.  397 ) 154 

Douglass  v.  Insurance  Co.   (138  N.  Y.  309). 

Douglass  v.  Kentucky  ( 168  U.  S.  488 ) 181 

Douglass  v.  Pike  County  (101  U.  S.  677), 408,  409,  411,  413 

Dow  v.  Biedleman    (125  U.  S.  680) 188 

Dowdell's  Case  (61  Am.  St.  R.  290) 308 

Dred  Scott  Case  (19  How.  395) 27,  30,  31,  35,  38 

Duncan,  In  re   (139  U.  S.  449) 396,  430,  434 

Duncan  v.  Missouri    (152  U.  S.  377) 56,  324 


E 

Eames  v.  Savage  ( 52  Am.  R.  751 ) 143 

Easton  R.  R.  Co.  v.  Easton    (133  Pa.  505  \ 216 

Eaton  v.  West  Virginia   (91  Fed.  760) 434 

Eberle,  In  re  (98  Fed.  295) 127 

Eden  v.  People    (161  111.  296) 214 

Edwards  v.   Kearzpy    (96  U.  S.   595) 294 


500  TABLE    OF    CASES. 

Page. 

Eight-Hour  Labor  Law,  In  re   (21  Colo.  29) 214 

Eilenbecker  v.  District  Court  ( 134  U.  S.  31) 147,  162,  286 

Elder  v.  Richmond   (58  Fed.  536) 425 

Eldridge  v.  Trezevant   ( 160  U.  S.  452) 288 

Elk  v.  Wilkins  (112  U.  S.  94) 18,  30 

Elliott  v.  McCormick    ( 144  Mass.  10) 51 

Elmendorf  v.  Elmendorf    (44  Atl.  164) 263 

Erie  Company  v.  Pennsylvania  (21  Wall.  492) 354 

Essex,  etc.  v.  Skinkle  ( 140  U.  S.  334 ) 118 

Eustis  v.  Bolles  ( 150  U.  S.  361 ) 421,  422 

Eustis  v.  City  of  Henrietta  (39  S.  W.  567 ) 287 

Evans  v.  Johnson  (39  W.  Va.  299 ) 281 

Evans-Snider-Buel  Co.  v.  McFadden   ( 105  Fed.  293) 313 


F 

Fairfield  v.  County   (100  U.  S.  47 ) 396 

Fallbrook  v.  Bradley   (164  U.  S.  112) 143,  150,  154,  287 

Farmers'  Bank  v.  Gunnel  (26  Grat.  131 ) 271 

Ferguson  v.  Milender  (32  W.  Va.  30) 256 

Fertilizing  Co.  v.  Hyde  Park  Co.   (97  U.  S.  659) 230,  363,  369 

Fielden    v.    Illinois     (143    U.    S.    452) 349,    419 

Fishback  v.  Western  Union   (161  U.  S.  96) 403 

Fisher   v.    City    (56    Pac.    520) 241 

Fisk  v.  Jefferson  Police  Jury    (116  U.   S.   131) 403 

Fitzpatrick  v.  United  States   (178  U.  S.  304) 311 

Flaherty,  Re   (27  L.  R.  A.  529) 225 

Fleming    v.    Page     (9    How.    603) 42 

Folmar  v.  Curtis  (27  Am.  &  Eng.  Corp.  Gas.  578 ) 226 

Folsom  v.  Ninety-six    (159  U.  S.  611 ) 409,  416 

Fonda,  Ex  parte   (117  U.  S.  516) 438 

Fong  Yue  v.  United  States    (149  U.  S.  698) 36,   37 

Ford  v.  Delta,  etc.  Co.    ( 164  U.   S.   662 ) 364 

Forsythe  v.  Hammond   (166  U.  S.  506) 397,  425,  428 

Fowler   v.    Lewis    (36    W.    Va,    112) 245 

Fox  v.   State    (89  Md.   381) 218,   220 

Frederich,  In  re   (149  U.  S.  70) 435 

Freeman  v.  Alderson   (119  U.  S.  185) 257 

Freeport  Co.  v.  City  ( 186  111.  179 ) 193 

French  v.   French    (52    S.   W.   517 ) 30 

Frorer  v.  People   (141  111.  171) 205 

Frost  v.  Chicago   (178  111.  250) 171 


TABLE    OF    CASES.  501 

G 

Page. 

Gaines   v.    Fuentes    (92   U.   S.    10) 263 

Galveston,  etc.  v.  Texas    ( 170  U.  S.  226) 425 

Gee  Hop,  In  re   (71  Fed.  274) 32 

Geer  v.  Connecticut   (161  U.  S.  519 ) 127 

Gelpcke  v.  Dubuque  ( 1  Wall.  175) 392,  409,  410,  415 

Georgia  Banking  Co.  v.  Smith  (128  U.  S.  174) 188,  192  ; 

Gibbons  v.  Ogden  (9  Wheat.  1 ) 129  \ 

Gibson  v.  Mississippi   (162  U.  S.  565) 113,  330,  421  ' 

Gilbert  v.  Ackerman    (159  N.  \.  118) 278 

Gilchrist  v.  Land  Company   (21  W.  Va.  115) 256 

Gilmer  v.  Hunnicut   (35  S.  E.  521 ) 164,  312 

Giozza  v.  Tiernan  (148  U.  S.  657 ) 79,  80,  224 

Gladson  v.  Minnesota    (166  U.  S.  427 ) 218 

Gleason  v.  Tacoma    ( 16  Wash.  412 ) 234 

Glendon  Iron  Co.  v.  Uhler   (75  Pa.  St.  467) 482 

Glenn,   Ex  parte    ( 103   Fed.   947 ) 438 

Goetze  &  Co.  v.  United  States   ( 103  Fed.  72) 42 

Gold  washing  Co.  v.  Keyes    (96  U.   S.   199) 423,   425 

Goodcharles  v.  Wigeman   (113  Pa.  St.  431 ) 203,  207 

Gosnell   v.   State    (52   Ark.   228) 82 

Grand  Lodge  v.  New  Orleans,  166  U.  S.  143) 368 

Granger  Cases,  The  (94  U.  S.  155) 164,  185,  187,  188 

Graves  v.  Battle  Creek    (95  Mich.  266) 238 

Green  v.   Biddle    ( 8   Wheat.    1 ) 39 

Green  v.  Briggs  ( 1  Curtis  C.  C.  R.  311 ) 158 

Green,  In  re  (141  U.  S.  325 ) 446,  448 

Green,  In  re  ( 134  U.  S.  377) 74 

Green  v.  Neal   (6  Pet.  291 ) 407 

Greenough  v.  Greenough    (11  Pa.  St.  489) 296 

Grice,  In  re  ( 79  Fed.  627 ) 351 

Griffin  v.  Cunningham   (20  Grat.  31) 291,  296,  297 

Gross  v.  United  States  Mortgage  Co.  (108  U.  S.  477)  .  .271,  313,  345 

Gulf,  etc.  Railway  Co.  v.  Ellis  (165  U.  S.  150) 324,  335 

Gum  v.  Hubbard    ( 10  Am.  St.  R.  312) 29 

Gundling  v.  Chicago    (177  U.  S.  183) 281,  299 

Gundling  v.  Chicago  (176  111.  340) 281 

Gusman  v.  Marero   (180  U.  S.  81,  21  Sup.  Ct.  293) 434 


H 

Racket  v.  State  (105  Ind.  250) 199 

Hagar  v.  Reclamation  Dist.   (Ill  U.  S.  701) 141,  147,  152,  164 

Raines  v.  Carpenter    (91   U.  S.  254) 424 

Hale  v.  La wrence  ( I  Zabrisk.  714 ) 173 


502  TABLE    OF    CASES. 

Page. 

Hall  v.  De  Cuir  (95  U.  S.  485) 89,  90 

Hall  v.  Laiming   (91  U.  S.  160) 256 

Hallinger  v.  Davis   (146  U.  S.  314) 143,  162,  283,  311 

Hamilton  v.  Brown  (161  U.  S.  256) 256 

Hamilton  Gas  Co.  v.  Hamilton  ( 146  U.  S.  258 ) 363,  364,  365,  369 

Hancock   v.   Yaden    ( 121    Ind.    366) 208 

Harbison  v.  Knoxville  Iron  Co.   (103  Tenn.  421) 203,  208,  209 

Harding   v.    Alston    ( 9    Me.    140 ) 253 

Harding  «v.  American  Glucose  Co.   ( 182  111.  551 ) 374 

Harding  v.  People   ( 160  111.  459 ) 113,  203 

Harknes-s  v.  Hyde   (98  U.  S.  476) 265 

Harkrader  v.  Wadley    (172  U.  S.  148) 427,  429,  431,  445 

Harpending  v.  Dutch  Church    ( 16  Pet.  455) 396 

Harrington  v.  Board    (20  R.  I.  233) 229 

Harris  v.  Eaton   (20  R.  I.  81) 311 

Harris  v.  Runnels    ( 12  How.  83 ) 233 

Harrison  v.  Baltimore   ( 1  Gill.  264) 228 

Harrison  v.  Harrison    (20  Ala.  629) 254 

Hart  v.  Burnett    ( 15  Cal.  530) 414 

Hart  v.  Mayor    (24  Am.  Dec.  165) 148,  216 

Hartford  Ins.  Co.  v.  Chicago,  etc.  Co.   (175  U.  S.  91) 399,  405 

Haun  v.  State   (7  Kan.  App.  509) 208 

Haverty  v.  Bass   (66  Me.  71 ) 228 

Havmeyer  v.  Iowa  Co.  (3  Wall.  294) 409 

Hays  v.  Missouri   ( 120  U.  S.  68) 343 

Head  v.  Amoskeag   ( 113  U.  S.  9) 279 

Henderson  Bridge  Co.  v.  City  ( 173  U.  S.  592 ) .352 

Hennington  v.  Georgia   ( 163  U.  S.  299) 214 

Herb  v.  Morash    ( 54  Pac.  323 ) 229 

Hess  v.  White   (24  L.  R.  A.  277) 288 

Heth  v.  Radford    (31  S.  E.  8) 164 

Hobbs,  Ex  parte    (1   Wood  537) 82 

Hoboken  v.  Land  Company    ( 18  How.  272 ) 146 

Hodson  v.  Vernval    (168  U.   S.  262) 144 

Hoffman  v.  Hoffman    ( 7  Am.  R.  299 ) 254 

Hoke  v.  Henderson  (4  Dev.  (N.  C.)   15), 157 

Holden  v.  City  of  Alton   (179  111.  318) 375 

Holden  v.  Hardy  (169  U.  S.  366) .  .56,  64,  144,  162,  214,  222,  320,  350 

Holden  v.  Minnesota   (137  U.  S.  483) 243,  273 

Holt  v.  Manufacturing  Co.    (176  U.   S.   68) 403 

Holyoke  v.  Lyman  ( 15  Wall.  500) 307,  365,  369 

Home  Company  v.  New  York   (134  U.  S.  594) 323,  340 

Home  of  Friendless  v.  Rouse  (8  Wall.  430) 36fi 

Hong  Wah,  In  re   (82  Fed.  623) 227 

Hood  v.  State    (56  Ind.  263) .254 

Hoole  v.  Dorroh   (75  Miss.  257) 242 


TABLE    OF    CA8E8.  503 

Page. 

Hooper  v.  California  (155  U.  S.  648) 128,  207,  331,  398 

Hope  v.  Johnson   (2  Yerg.   (Tenn.)    123) 294 

Hopt  v.  Utah   (110  U.  S.  574) 292,  312 

Hopkins  v.  MeClure   ( 133  U.  S.  380) 404 

Hopkins  v.  Oxley   (83  Fed.  912) 472 

Hopkins  v.  United  States    (171  U.  S.  578) 477,  481,  486 

Houck  v.  Anheuser-Busch  Assoc.  (88  Texas  184) 374 

Houston,  etc.  R.  Co.  v.  Texas   (177  U.  S.  77) 399 

Hovey  v.  Elliott   (167  U.  S.  409) 251 

Huling  v.  Raw  Valley  Co.  ( 130  U.  S.  559) 255 

Humphreys  v.  Church    (109  N.  C.   132) 226 

Humphreys  v.  Newport  News  Co.   (33  W.  Va.  137 ) 305 

Hunt  v.  Hurd   (98  Fed.  683) 417 

Hunter  v.  Martin  (4  Munf.  1 ) 392,  423,  446 

Hunter  v.  Martin  ( 1  Wheat.  304 ) 392,  423,  446,  447 

Hurtado  v.  California    (110  U.  S.  537), 

15,  72,  142,  143,  144,  147,  290,  307 

Hurst  v.  Town    (82  N.  W.   1099) 314 

Hutchinson  v.  Stovie   (92  Tex.  685) 165 


Illinois  Central  Co.  v.  Adams  (179  U.  S.  — ),  (21  Sup.  Ct.  251), 

366,  403,  421 

Illinois  Central  v.  Griffin  (80  Fed.  278) 237 

In  re  Ah  Yup  (5  Sawy.  (U.  S.)   155 32,  33 

In  re  Atlantic  City  R.  Co.    ( 164  tr.  S.  633) 448 

In  re  Black    (175  U.  S.  115) 447 

In  re  Burris   (136  U.  S.  586) 439 

In  re  Clark's  Estate  (46  (Pa.)  Atl.  127) 333 

In  re  Converse    (137  U.  S.  624) 385 

In  re  Coy   ( 127  U.  S.   731) 78 

In  re  Debs  (158  U.  S.  564) 129,  147,  162,  286,  473 

In  re  Dey    (9    N.    J.    Ch.    181 ) 308 

In  re  Duncan  ( 139  U.  S.  449 ) 396,  430,  434 

In  re  Eberle    (98    Fed.    295) 127 

In  re  Flaherty  (27  L.  R.  A.  529) 225 

In  re  Gee  Hop   (71  Fed.  274 ) 32 

In  re  Green   ( 141  U.  S.  325) 446,  448 

In  re  Green  ( 134  U.  S.  377 ) 74 

In  re  Grice    (79    Fed.    627) 351 

In  re  Hong  Wah   (82  Fed.  623) 227 

In  re  Kanaka  (21  Pac.  993) 43 

In  re  Kemmler  (136  U.  S.  436) 12,  15,  93,  235,  323 

In  re  Lockwood  (154  U.  S.  116) .  .47,  81 


504  TABLE    OF    CASES. 

Page. 

In  re  Loney   (134  U.  S.  372)  . . . , 441 

In  re  Look  Tin  Sing  (21  Fed.  905) 18,  21,  22,  26,  27,  32,  34 

In,  re  Morgan    (58  Pac.  1071 ) Ill,  214,  222 

In  re  Morrison    (147    U.    S.    14 ) 448 

In  re  Nagle    (135  U.  S.  1 ) .441 

In  re  Parrott    ( 1   Fed.   481 ) 330 

In  re  Pennsylvania  Co.    (137  U.  S.  451 ) 425,  448 

In  re  Po    (£6  N.  Y.   383) 43 

In  re  Preston   ( 59  N.  E.  101 ) 203,  206 

In  re  Rahrer    (140  U.  S.  545) 169,  385,  491 

In  re  Spangler     ( 11    Mich.    299 ) 51 

In  re  Swan    (150  U.  S.  648) 434 

In  re  Tuthill    (163  N.   Y.    133) 287,    306 

In  re  Yonder  Ahe    (85  Fed.  959) 350 

In  re  Waite     (81    Fed.    359) 442 

In  re  Wood   (140  U.  S.  278) 83,  438 

In  re  Wong  Kim  Ark    (71  Fed.  382) 26,  32 

Insurance  Co.  v.  Bales  of  Cotton    ( 1  Pet.  511 ) 35 

Insurance  Co.  v.  Bayha   (8  Kan.  App.  169) 335 

Interocean  Pub.  Co.  v.  Assoc.  Press   (184  111.  438) 183,  188,  376 

Interstate  Commerce  v.  Brimson   (154  U.  S.  447 ) 474 

Iowa  Savings,  etc.  v.  Heidt    (77  N.  W.   1050) 313 

Iron  Mountain  R.  Co  v.  City  of  Memphis  (96  Fed.  113) 431 


J 

Jacksonville,  etc.  v.  Adams    (33   Fla.   608) 288 

Janvrin   Case    ( 174  Mass.   514) 193 

Jefferson  Bank  v.  Skelly   ( 1  Black.  436 ) 353 

Jellenix  v.  Huron  Copper  Co.   (177  U.  S.  1 ) 271 

Jenkins  v.  Ballentine  (8  Utah,  245) 290 

Jens  v.  Lands  (84  Fed.  73) 2] 

Johnson  v.  Goodyear   ( 59  Pac.  304) Ill,  336 

Jones  v.  Brim    (165  U.   S.   180) 312 

Jones  v.  People  (84  111.  App.  453) 241 

Jones  v.  Perry     ( 10    Yerg.    59) 158 

Judefind  v.  Maryland   (22  L.  R.  A.  721 ) 214 


K 

Kansas  v.  Zeibold  (123  U.  S.  623) 147 

Kansas  Pac.  Co.  v.  Atchison,  etc.  Co.   (112  U.  S.  416) 426 

Kaukana,  etc.  v.  Green  Bay  Co.  (142  U.  S.  254) 54,  280 

Kelley  v.  Owen    (7   Wall.   496) 28 


TABLE    OF   CA8E8.  505 

Page. 

Kelley  v.  Pittsburg  (104  U.  S.  78) 149,  355 

Kemmler,  In  re  (136  U.  S.  436) 12,  15,  93,  235,  323 

Kenaka,  Re    (21   Pac.  993) 43 

Keeler  Case   (55  Am.  St.  R.  785) 148,  216 

Kennard  v.  Louisiana   (92  U.  S.  480) 279 

Kentucky  v.  Dennison    (24  How.  66) 444,  453 

Kentucky  Railroad  Tax  Cases  (115  U.  S.  321 ) 152,  323 

Kern  v.  Huidekoper  ( 103  U.  o.  485) 426 

Kidd  v.  Pierson  ( 128  U.  S.  1) 79,  80,  170 

Kilbourn  v.  Thompson  ( 103  U.  S.  168) 162,  297 

Kiramish  v.  Ball    (129  U.  S.  217) 92 

King  v.  City  of  Portland    (63  Pac.  2) 164 

King  v.  Cross   (175  U.  S.  396) 266,  27T 

King  v.  Mullins  (171  U.  S.  404) 153,  158,  261,  336 

Kinney  v.  Beverly   ( 1  Hen.  &  Munf.  531 ) 141 

Kirtland  v.  Holkiss   (100  U.  S.  491 ) 149 

Kizer  v.  Texarkana  Co.   (179  U.  S.  199) 422 

Knowlton  v.  Moore    (178  U.   S.    41 ) 342 

Kohl  v.  United  States   (91  U.  S.  367 ) 469 

Kreibohn  v.  Yancey    (55  S.  W.  260) 233 

Kreitz  v.  Behrrenmayer    ( 125  111.   141 ) 28 


L 

Lake  Shore  v.  Ohio   (173  U.  S.  285) 178,  218 

Lake  Shore  Co.  v.  Smith   ( 173  U.  S.  684) 181,  194 

Lambert  v.  Barrett  ( 159  U.  S.  660) 283,  423,  424 

Lancaster  v.  Clayton  ( 18  Am.  &  Eng.  Corp.  Cas.  31 ) 354 

Lane  v.  Oregon    (7   Wall.   71 ) 383 

Laney  v.  Garbee    (105  Mo.   355) 253 

Lansing  v.  Smith  (21  Am.  Dec.  89) 108,  138 

Lanz  v.  Randall  (4  Dill.  425) 24 

Laughlin  v.  Louisiana  Ice  Co.    (35  La.  Ann.   1184) 51 

Lawton  v.  Steele  (152  U.  S.  133) 127,  148,  172,  216,  221 

Leep  v.  Iron  Mountain  Co.    ( 58  Ark.  407 ) 207 

Leeper  v.  Texas   (139  U.  S.  462) 282,  293,  390,  396,  397,  429 

Leffingwell  v.  Warren   (2  Black,  599) 396,  408 

Legal  Tender  Cases    ( 12  Wall.   531 ) 36 

Lehew   v.    Brummell    ( 103   Mo.    546) 91 

Lehigh  Water  Co.  v.  Easton  (121  U.  S.  391 ) 137,  399 

Leighton  v.  Young   (52  Fed.  439) 164 

Leisy  v.  Hardin   ( 135  U.  S.  100) 491 

Lem  Hing  Dun  v.  United  States   (7  U.  S.  App.  31) 29,  32 

Lent  v.  Tillson   (140  U.  S.  316) 295,  4fi8 

L'hote  v.  New  Orleans  ( 177  U.  S.  587 ) 170,  358,  420 


506  TABLE    OF    CASES. 

Page. 

Levasser  v.   Washburn    (11    Grat.    572 ) 262 

License  Cases    (5  How.   583) 169 

License  Tax  Cases   (5  Wall.  462) 299,  301 

Life  Insurance  Co.  v.  Yokum   (98  Fed.  251 ) 343 

Lindsay  &  Phelps  Co.  v.  Mullen  (176  U.  S.  126) 234 

Linkous   v.   Shafer    (28   Grat.    775) 297 

Little  v.  State   (84  N.  W.  248 ) 241 

Livingston's  Case   ( 14  Grat.  592) 232 

Loan  Association  v.  Topeka    (20  Wall.  655) 161 

Lockwood,  In  re  ( 154  U.  G.  116) 47,  81 

Loeb  v.  Trustees  ( 179  U.  S.  472) 164,  396,  409,  422 

Logan  v.  United  States  (144  U.  S.  263) 60,  68,  417,  418,  428,  451 

Loney,  In  re    (134  U.  S.  372) 441 

Long  Island  Water  S.  Co.  v.  Brooklyn   (166  U.  S.  685) 468,  469 

Looker  v.  Maynard    (179  U.  S.  46) 365 

Look  Tin  Sing,  In  re  (21  Fed.  905) 18,  21,  22,  26,  27,  32,  34 

Los  Angeles  v.  Los  Angeles  Co.  (177  U.  S.  558) 193,  360,  409,  416 

Loughbrough  v.   Blake    (5   Wheat.   317) 41 

Louisville  v.  Bank   (174  U.  S.  439) 363,  365 

Louisville  Gas  Co.  v.  Citizens'  Gas  Co.   (115  U.  S.  683) 370 

Louisville  v.  Palmes   (109  U.  S.  244) 399 

Louisville,  etc.  v.  Mississippi    (133   U.    S.    587 ) 88 

Louisville  &  Nashville  Co.  v.  Schmidt  (177  U.  S.  230) .  .82,  147,  295 

Louisville,  etc.  Co.  v.  W^oodson   (134  U.  S.  614)  . . 273 

Louisville  Water  Co.  v.  Clark    (143  U.  S.   1 ) 369 

Loving  v.  Railroad  (47  W.  Va.  — ) 145,  287,  289 

Low  v.  Rees  Printing  Co.   (41  Neb.  127 ) 214,  222 

Lowe  v.  Austin  ( 13  Wall.  29 ) 159 

Lowe  v.  Kansas   (163  U.  S.  81 ) 143 

Lowry  v.  Silver  City  Co.    (179  U.  S.  196 ) 421 

Ludlam  v.  Ludlam  (26  N.  Y.  356) 26,  27,  28 

Luman   v.    Kitchens    (44    Atl.    1051 ) 209 

Lynch  v.  Clark    ( 1   Sandf.  Ch.  584) 29 

Lynn   v.    State    (25   S.   W.   779) 290 


M 

McAllister  v.  United  States   ( 141  U.  S.  174) 39 

McArdle,  Ex  parte    (6  Wall.   318) 432 

McCall  v.  Ratchford    (82  Fed.  41 ) 472 

McClure  v.  Maitland    (24  W.  Va.  561 )      262 

McClure  v.  Mauperture    (29  W.  Va.   633) 262 

McCracken    v.    Hayward    ( 2    How.    608 ) 294 

McCready's    Case    (27    Grat.    985) 68 

McCready  v.  Sexton   (29  Iowa.  356) 166 


TABLE    OF    CASES.  507 

Page. 

McCmuly  v.  Virginia  (94  U.  S.  391 ) 313 

MfCullough  v.  Maryland   (4  Wheat.  31C) 150,  303,  383 

McCullough  v.  Virginia  (172  U.  S.  102) 297,  399,  400 

McDonald  v.  Commonwealth    ( 173  Mass.  322) 280,  365 

McEldowney  v.  Wyatt   (44  W.  Va.  711 ) 274 

McKlmoyle   v.   Cohen    ( 13   Pet.   312) 265 

McKlvaine  v.  Brush   (142  U.  S.  155) 93,  108,  232,  243,  396 

M;u key  v.  Enzensperger   (11  Utah,  154) 288 

Mackane    v.    Durston    (153    U.    S.    684) 289 

Mi-Kay  v.  Campbell    (2  Sawyer,   118 ) 29 

McKinney  v.  State    ( 3  Wyo.   719 ) 357 

McMillen  v.  Anderson  (95  U.  S.  37 ) 146,  150 

McMullen  v.  Hoffman  ( 174  U.  S.  639) 133 

McXamara  v.  People    (55  N.  E.  625) 291 

McPherson  v.  Blacker   ( 146  U.  S.  1 ) 74 

McVeigh  v.  United  States  ( 11  Wall.  267 ) 257 

Magoun  v.  Illinois    (170  U.  S.  283) 323,  325,  341 

Mallory  v.  Hanaur  Oil  Works  (86  Tenn.  598) 373 

Marchant  v.   Pennsylvania   R.   R.   Co.    (153   U.    S.   380) 

141,  142,  349,  360 

Marcum  v.  Manning   (96  N.  C.  132) 92 

Martin  v.  Baltimore  &  O.  Co.  (151  U.  S.  673) 44 

Martin  v.  Board  of  Education   (42  W.  Va.  514) 90 

Martin  v.  Hunter  ( 1  Wheat.  304) 392,  404,  423,  446,  447 

Martin  v.  School  Dist.    (35  S.  E.  517 ) 354 

Mason  v.  Haile  (12  Wheat.  374) 292,  294 

Mason  v.  Missouri   (179  U.  S.  328) 233 

Massie   v.   Watts    (6   Cranch,    148) 247 

Matthews  v.  Associated  Press  ( 136  N.  Y.  333) 376 

Matthews  v.  Shanklin   (56  N.  Y.  S.  123) 472 

Matter  of  Day   (9  X.  J.  Ch.  181 ) 308 

May  v.   Xew  Orleans    (178   U.    S.   496) 490 

Mayer  v.  Journey  Stone  Cutters    (47  X.  J.  Eq.  519)  . 472 

Mayor  v.  Cooper  (6  Wall.  252) 404 

Mayor  v.  Dry  Dock    (133  N.  Y.  104) 212 

Mayor  v.  Yuille    ( 3  Ala.  37) 199 

Maxwell  v.  Dow  ( 176  U.  S.  581 144,  307 

Medley's  Case    (134  U.  S.  160) 243 

Mellen  v.  Moline  Iron  Works  ( 131  U.  S.  352) 258 

Memphis  Gas  Co.  v.  Shelby  County  (109  U.  S.  396) 149 

Merchants'  Bank  v.  Pennsylvania    (167  U.  S.  461) 353,  397 

Merrill  v.  Bowlen    (20  R.  I.  226) 286 

Mexican  Co.  v.  Davidson    (157  U.  S.  201 ) 425 

Meyer  v.   Berlandi    ( 39  Minn.   438 ) 283 

Mayer  v.  Richmond   (172  U.  S.  82) 291 

Miller  v.  Ammon    (145  U.   S.   421) ..79 


508  TABLE    OF    CASES. 

Page. 

Miller  v.  Texas  (153  U.  S.  535) 92,  146,  290 

Millett  v.  People   (117  111.  294) 206 

Mills  v.  St.  Clair    (8  How.  569) 465 

Minneapolis  v.  Beckwith    (129  U.  S.  26) 168,  217,  324 

Minneapolis  Co.  v.  Emmons   (149  U.  S.  364) 217 

Minneapolis,  etc.  v.  Herrick  ( 127  U.  S.  210) 324 

Minneapolis  v.  Reum   ( 12  U.  S.  App.  446) 24 

Minor  v.  Happerset  (21  Wall.  162) 15,  17,  18,  19,  47,  74,  75 

Mississippi  Boom  Co.  v.  Patterson   (98  U.  S.  403) 464,  465,  468 

Missouri,  etc.  Co.  v.  Fitzgerald  (160  U.  S.  556) 421 

Missouri,  etc.   Co.  v.   Haber    (169   U.   S.    613) 92 

Missouri  v.  Lewis  (101  U.  S.  22) 282,  343 

Missouri  Co.  v.  Nebraska  ( 164  U.  S.  403) 163,  310,  470 

Missouri,  Kansas  &  Tex.  Co.  v.  Board   (59  Pac.  383) 241 

Missouri,  Kansas  &  Tex.  Co.  v.  McCann  (174  U.  S.  586) 397 

Missouri  Pacific  Co.  v.  Humes  ( 115  U.  S.  512 ) 326 

Missouri  R.  Co.  v.  Mackey  (127  U.  S.  205) 199,  324,  325,  342 

Mitchel  v.  Burlington   (4  Wall.  270) .409 

Mitchell  v.  Commissioners  (91  U.  S.  206) 159 

Mobile  v.  Kimball    (102  U.  S.  691 ) 129,  178,  324 

Mobile  v.  Yuille   (3  Ala.  N.  S.  140) 183 

Mogul,  S.  S.  Co.  v.  McGregor    (21  Q.  B.  Div.  544) 482 

Molyneux  v.  Seymour    ( 76  Am.  Dec.  671 ) 269 

Mon  Luck,  Ex  parte   ( 29  Ore.  421 ) 224 

Monongahela  Co.  v.  United  States   (148  U.  S.  312) 366,  468 

Montana  Co.  v.  St.  Louis  Co.   ( 152  U.  S.  160) 162 

Mooney  Manufacturing  Co.   ( 34  U.  S.  App.  582) 268 

Moore  v.  Missouri   (159  U.  S.   673) 288,  290,  355 

Moore  v.  Strickling  (46  W.  Va.  515) 165 

Moores  v.  Bank   (104  U.  S.  625) 408 

Morgan,  Re  (58  Pac.  1071) Ill,  214,  222 

Morgan  v.  Louisiana   (118  U.  S.  455) 129 

Morley  v.  Lake  Shore  Co.  (146  U.  S.  162) 396,  397,  398 

Mormon  Church  v.  United.  States    (136  U.   S.    1) 39,   40 

Morris  Run  Coal  Co.  v.  Barclay  Co.   (68  Pa.  St.  173) 488 

Morris  v.  City  (30  S.  E.  850) 225 

Morrison,   Re    (147   U,   S.   14) 448 

Morton  v.  Nebraska    (21  Wall.  660) 119 

Moundsville  v.  Fountain  (27  W.  Va.  182) 282,  272 

Mugler  v.  Kansas   (123  U.  S.  623) 79,  216,  224,  286 

Multonomah  v.  Savings  (169  U.  S.  421 ) 158,  303 

Munn  v.  Illinois  (94  U.  S.  113) 143,  185,  193,  194,  199,  204,  369 

Murdock   v.   Memphis    (20   Wall.    591 ) 404 

Murdock  v.  Ward  (178  U.  S.  139) 342 

Murphy  v.  Massachusetts    (177  U.  S.  155) 232,  295 

Murphy  v.  Ramsey  (114  U.  S.  44) 36,  39,  79 


TABLE    OF    CASES.  509 

Page. 

Murray  v.  Hoboken    ( 18   How.  276) 48,   154 

Murray  v.  McCarty    (2   Munf.   393) 23,  24 


N 

Xagle,  In  re  (135  U.  S.  1) 441 

Nash  v.  Page  (80  Ky.  539) 199  ' 

Nashville  Co.  v.  Alabama    (128  U.  S.  96) 228 

Natal  v.  Louisiana    (139  U.  S.  621 ) 273 

National  Fertilizer  v.  Lambert  (48  Fed.  458) 229 

National  Harrow  Co.  v.  Hench   (83  Fed.  36) 372 

Neal  v.  Delaware  ( 103  U.  S.  370) 47,  55,  328 

Newburyport  Water  Co.  v.  City  (103  Fed.  684), 

82,  132,  178,  181,   193,  470 

New  Orleans  v.  Benjamin    (153  U.  S.  411) 404,  423,  424 

New  Orleans  v.  Kaufman    (29    La.   Ann.    283) 352 

New  Orleans  v.  N.  O.  Water  Co.   (142  U.  S.  79), 

118,  361,  364,   366,  421 

New  Orleans  v.  Semple  ( 175  U.  S.  309) 303 

New  Orleans  Gas  Co.  v.  Hart   (40  La.  Ann.  474) 173 

New  Orleans  Gas  Co.  v.  Louisiana  L.  Co.  (115  U.  S.  650) 

359,   360,   366,   369 
New  Orleans  Water  Works  v.  Louisiana  Sugar  Co.    (125  U.  S. 

18) 98,  399,  400,  412 

New  Orleans  Water  Works  v.  Rivers  ( 115  U.  S.  674) 359 

Newton  v.  Commissioners  ( 100  U.  S.  548 ) 363,  366 

New  York  v.  Eno  ( 155  U.  S.  89) 417,  435 

New  York  v.  Miller    (11    Pet.    102) 137 

New  York  v.  New  York  Clearing  House  (179  U.  S.  — ) 323 

New  York,  etc.  Co.  v.  Bristol    ( 151  U.  S.  556) 222 

New  York,  etc.  Co.  v.  People  ( 165  U.  S.  628) 310 

New  York  Life  Co.  v.  Craven  (178  U.  S.  389) 305,  331,  396 

New  York  &  N.  E.  Co.  v.  Bristol   (151  U.  S.  556) 169,  178,  222 

Niemeyer  v.  Wright   (75  Va.  239) 233 

Nishimura  Ekin  v.  United  States   (142  U.  S.  651 ) 146 

Nobles  v.  Georgia  (168  U.  S.  398) 283,  308,  397 

Noel   v.   People    ( 187    111.   587) 81 

Nongue  v.  Clapp    (101  U.  S.  551 ) 425 

North  American  Co.  v.  Lake  View  (2  Am.  &  Eng.  Corp.  Gas.  6). ..217 

Northwestern  University  v.  People  (99  U.  S.  309) 400 

Norton  v.  Shelby  County    (118  U.  S.  425) 291,  396 

Norwood  v.  Baker    (172  U.  S.  269) 163,  165 


510  TABLE    OF    CASES. 

O 

Page. 

Gates  v.  National  Bank   ( 100  U.  S.  239) 405 

O'Brien  v.  Wheelock   (95  Fed.  883) 407 

Ohio  v.  Thomas    (173  U.   S.  276) 442 

Ohio  Coal  Co.  v.  Indiana    (177  U.  S.  90 ) 126 

Ohio  Life  Ins.  Co.  v.  Debolt    ( 16  How.   416) 409 

Oliver  v.  Parlin  &  Orendorf  Co.    ( 105  Fed.  272) 427 

Oneal  v.   Behanna    (182   Pa.   St.   236 ) 472 

Opinion  of  Justices  ( 163  Mass.  589 ) 128,  215 

Oregon,  etc.  v.  Skottow  ( 162  U.  S.  490) 426 

Orient  Ins.  Co.  v.  Daggs  (172  U.  S.  557) 140,  331,  332,  337,  338 

Osborn  v.  Bank    (9  Wheat.  738 ) 404 

Overby  v.  Gordon  (177.U.  S.  221) 250 


P 

Pacific  Express  Co.  v.  Seibert    (142  U.   S.  339) 333,   335 

Paddock  v.  Missouri  Pacif.  Co.   ( 155  Mo.  524) 335 

Palmer  v.  McMahon  ( 133  U.  S.  660) : .  150,  152 

Palmer  v.  Tingle  ( 55  Ohio  St.  423) 201 

Palmer  &  Crawford  v.  Crawford   (55  Ohio  St.  423) 285 

Parker  v.  Metrop.  Co.    ( 109  Mass.  507 ) 199 

Parkersburg  Gas  Co.  v.  Parkersburg  (30  W.  Va.  435) 137 

Parrott,  In  re   (1  Fed.  481 ) 330 

Parsons  v.  District   ( 170  U.  S.  45) 445 

Parsons  v.  Snider    (42  W.  Va  517 ) 427 

Passenger  Cases    (7  How.  283) 86,   176 

Patterson  v.  Kentucky    (97   U.   S.   501 ) 235 

Paul  v.  Virginia  (8  Wall.  168) 43,  46 

Paulsen  v.  Portland   ( 149  U.  S.  30) 164,  165 

Pearsall  v.  Great  Northern  Co.   (161  U.  S.  646)  ..359,  360,  365,  366 

Peik  v.  Chicago   (94  U.  S.  155) 185,  188 

Pembina  v.   Pennsylvania    (125   U.   S.    181 ) 323,   331 

Peninsular  Co.  v.  Union  Co.   ( 100  Wis.  488) 293 

Penn  v.  Lord  Baltimore   ( 1  Ves.  444) 247 

Penn  Mutual  v.  City  of  Austin  ( 166  U.  S.  685) 97 

Pennoyer  v.  Neff  (95  U.  S.  714) 245,  250,  258 

Pennsylvania  Co.  In  re  (137  U.  S.  451 ) 425,  448 

Pennsylvania  Co.  v.   St.  Louis,  Alton,  etc.  Railroad    (118  U.  S. 

290 374 

People  v.  Bellett  (99  Mich.  151) 214 

People  v.  Budd  (145  U.  S.  175) 180 

People  v.  Budd    (117  N.  Y.  1 ) 175,  197 

People  v.  Chicago  Gas  Trust    (130  111.  268) 374 

People  v.  City  (18  Am.  &  Eng.  Corp.  Cas.  28) 354 


TABLE    OF    CASES.  511 

Page. 

People  v.  Gallagher   (93  N.  Y.  438) 9P 

People  v.  Harper    (91   111.  357) 211 

People  v.  Havnor    (149   N.  Y.   195) 214 

People  v.  Japinga    ( 1 15  Mich.  222 ) 94 

People  v.  Mayor    (*55  Am.  Dec.  266) 164 

People  v.  New  York  (145  U.  S.  175) 199 

People  v.  Pellett   (41  Am.  St.  R.  589 ) 94 

People  v.  Pratt   (38  Am.  &  Eng.  Corp.  Gas.  201) 226 

People  v.  St.  Saviours  Sanitarium  (34  App.  Div.  363) 281 

People  v.  Simon    ( 176  111.   165 ) 260 

People  v.  Squires  ( 1  Am.  St.  R.  893) 178 

People  v.  Sugar  Refining  Co.    (54  Hun,  354) 134 

People  v.  Sugar  Trust  (121  N.  Y.  582) 372 

People  v.  Warden  ( 157  N.  Y.  116) 115,  281 

People  v.  Warden    (144   N.    Y.   529) 197 

People  v.  Western  Union  Tel.  Co.   ( 166  111.  15) 183 

Pepke  v.  Cronon    (155  U.  S.  100) 438 

Pequignot  v.  Detroit   ( 16  Fed.  211 ) 29 

Percy  v.   Cockrill    (53   Fed.   872) 396 

Perkins    v.    Wakeham    (86    Cal.    581 ) 258 

Peryear  v.  Commonwealth    ( 5  Wall.  475 301 

Peter  v.  Hargrave  (5  Grat.  12) 117 

Petit  v.  Minnesota    (177  U.  S.  164) 94,  214 

Pettibone  v.  United  States  ( 148  U.  S.  209 ) 428 

Pfeister  v.  Wheeling,  etc.    (19  W.  Va.  676) 346 

Phelan  Case   (62  Fed.  803) 472 

Phenix  Co.  v.  State  (72  Am.  St.  R.  143) 299,  353 

Phenix  Co.  v.  State  (118  Ala.  143) 299,  353 

Pike's  Peak  Power  Co.  v.  City  of  Colorado  Springs  ( 105  Fed.  1 ) , 

359,  364,  365 

Pillow  v.  Improvement  Co.    (92  Va.   144) 286 

Piqua  Branch  Bank  v.  Knoop    1 16  How.  369) 366,  367 

Pinney  v.  Providence  Company  (82  X.  W.  308) 263 

Pittsburg,  etc.  Co.  v.  Backus   ( 154  U.  S.  421 ) 152,  280 

Pittsburg  &  L.  A.  Co.  v.  Cleveland  Iron  Co.  (178  U.  S.  270) 424 

Pleasant  Township  v.  .Etna  L.  Ins.  Co.   (138  U.  S.  67) 409,  416 

Plessy  v.  Ferguson   ( 163  U.  S.  537 ) .' 87,  89,  90 

Plumer  v.  Coler    (178  U.   S.   115) 159,   342 

Plumley  v.  Massachusetts  ( 155  U.  S.  461 ) 219,  301 

Po,  In  re    (28   N.  Y.   383) 43 

Pollock  v.  Farmers'  L.  &  T.  Co.   (158  U.  S.  601) 379,  412 

Pollock  v.  Farmers'  L.  &  T.  Co.   (157  U.  S.  429) 159 

Potter  v.  Bank    (102  U.  S.   165) 418 

Potts  v.   Brown    ( 167   111.   67 ) 225 

Powell  v.  Pennsylvania    (127  U.  S.  678) 79,   107,  219,   334 

Power  v.  Village  (10  Am.  &  Eng.  Corp.  Cas.  54) 137 


512  TABLE    OF    CASES. 

Page. 

Prentis  v.  Brennan  (2  Blatch.  102) 24 

Presser  v.  Illinois  (116  U.  S.  252) 81 

Preston,  In  re   (59  N.  E.  101) 203,  206 

Priest  v.  Cummings    ( 16  Wend.  617 ) 29 

Prigg  v.   Commonwealth   of   Pennsylvania    (16   Pet.   539) 450 

Proprietors  of  Bridge  v.  Hoboken  Land  Co.    (1  Wall.  116)    400 

Providence  Bank  v.  Billings   (4  Pet.  514) 353 

Provident  v.  Mayor  ( 113  U.  S.  506) 221 

Pullman  Co.  v.  Pennsylvania   (141  U.  S.  18) 302,  303,  305 


R 

Ragio  v.  State  ( 86  Tenn.  272 ) 214 

Rahrer,  In  re   ( 140  U.  S.  545 ) 169,  385,  491 

Railroad  v.  Backus     (154    U.    S.    439) 340 

Railroad  v.  Brown    ( 17    Wall.   445 ) 87 

Railroad  v.  Mackey  (127  U.  S.  205) 180,  199,  324,  325,  342 

Railroad  v.  Penniston   ( 18  Wall.  1 ) 159 

Railroad  Commission  Cases    (116   U.   S.    307) 188,    196 

Railroad  Company  v.  Childers   (82  Ga.  719) . 239 

Railroad  Company  v.  Husen    (95  U.  S.  465) 93,   176,  178 

Railroad  Company  v.  Koontz    (104  U.  S.  12 ) 305 

Railroad  Company  v.  Richmond    (96   U.   S.   521 ) 229 

Railroad  Company  v.  Transportation  Company   (25  W.  Va.  324) 

169,  184,  193,  199,  369 

Railroad  Company  v.  Whitton    ( 13    Wall.    270) 44 

Railway  v.  Lafton   (96  U.  S.  564) 354 

Railway  v.  Mathews    (165  U.  S.   1 ) 180 

Railway  v.  Matthews    (174  U.  S.  96) 180,  325,   335,   338 

Railway  Company  v.  Ellis    (165    U.    S.    150) 324,    335 

Railway  Company  v.  National  Bank    (102  U.  S.   14) 412 

Railway  Company  v.  Philadelphia   (101  U.  S.  528 ) 365,  369 

Ralston  v.  Weston    (46  W.  Va.  544) 217 

Ramish  v.  Hartwell   ( 58  Pac.  920) 242 

Ramsey   v.    People    ( 142    111.    380) 206 

Ratcliffe  v.  Anderson    ( 31   Grat.   105) 297 

Ray  v.  Western  Pa.  Gas  Co.   (138  Pa.  St.  576) 412 

Raycroft  v.  Tayntor  (33  L.  R.  A.  235) 482 

Raymond  v.  Levitt  ( 46  Mich.  450) 132 

Reagan  v.  Farmers'  Loan  (154  U.  S.  362) 194,  196,  198,  199 

Rector    v.    Philadelpha    (24    How.    300) 368 

Reeve  v.  Ladies'  Association    (56  Ark.   335) 345 

Refrigerator  Co.  v.  Hall    (174  U.  S.  70) 304 

Reggel,  Ex  parte  (114  U.  S.  642) 282 

Reyman  Company  v.  Brister  (179  U.  S.  445) 79,  352 


TABLE    OF   CASES.  513 

Page. 

Reynolds  v.  United  States   (98  U.  S.  54) 40 

Rhodes  v.  Iowa  (170  U.  S.  412) 80 

Rice  v.  Railroad    ( 1  Black,  358 ) 353 

Richards  v.  Clarksburg   (30  VV.  Va.  491 ) 165,  213 

Richardson   v.   Buhl    (77   Mich.   632) 488 

Richmond  v.  Richmond  &  D.  Co.    (21   Grat.  604) 354,  355 

Riggs  v.  Johnson  ( 6  Wall.  195 ) 425 

Ritchie  v.  People    (155  111.  98) 113,  214 

Ro  Bard  v.  Lamb   (127  U.  S.  58) 255 

Robb  v.  Connolly  (111  U.  S.  624) 450 

Roberts  v.  City   (5  Cush.   198) 89 

Roberts  v.  Cocky  (28  Grat.  207 ) 295 

Robinson,  Ex  parte  ( 19  Wall.  505) 473 

Roller  v.  Holley  (176  U.  S.  398) 252,  266 

Rondot  v.  Rogers   (99  Fed.  202) 409,  416 

Rowan  v.  Runnels  ( 5  How.  134 ) 409 

Royall,  Ex  parte   (117  U.  S.  241 ) 435,  437,  438,  443 

Royall  v.  Virginia    (116  U.   S.  572) 300 

Ruckabee  v.  Moore    ( 104  Fed.  947 ) 28 

Ruggles  v.  Illinois   (108  U.  S.  526) 192 

Ruggles  v.  People  (91  111.  256) 199 

Ruhstratt  v.   People    (185   111.    133) 171,   333 

Russell  v.  Southard   ( 12  How.  139) 393 

Ryan  v.   Brindley    (1   Wall.  66) 418 


8 

St.  Clair  v.  Cox    ( 106  U.    S.   350) 44 

St.  Louis  v.  Dorr    (41  S.  W.   1094) 351 

St.  Louis  Co.  v.  Hall   ( 173  U.  S.  440) 220 

St.  Louis  &  San  Francisco  Co.  v.  Gill  ( 156  U.  S.  649) 189 

St.  Tamany  Water  Co.  v.  New  Orleans  Water  Works    (120  U. 

S.  64) 360,  362 

Salt  Company  v.  East  Saginaw  (13  Wall.  373) 362 

San  Diego  Water  Works  v.  City    (118  Cal.  556) 192,   198,   199 

Sanford  v.  Poe  (37  U.  S.  App.  378) 306,  354 

San  Mates  v.  Railroad  Co.   (13  Fed.  722 ) 31 

Santa  Clara  v.   Southern  Pac.  Co.    (18  Fed.  385) 336 

Santissima  Trinidad    (1   Brock.    (U.  S.)    478) 20,  22 

Saranac  L.  Co.  v.  Roberts   (177  U.  S.  318) 277,  313 

Sayward  v.  Denny   (158  U.  S.  180) 422 

Schenck   v.    City    (152    Ind.    204) 313 

Scholle  v.  State  (42  Atl.  326) 81 

Schoolfield  v.  City    (78  Va.   366) 341 

Sehultz  v.  Schultz    (10  Grat.  258) 264 


514  TABLE    OF    CASE 8. 

Page. 

Scott  v.  Jones  (5  How.  343) 36 

Scott  v.  McNeal    (154  U.   S.   34) 256 

Scott  v.  Sandford    ( 19   How.   393 ) 18 

Scuyler  Bank  v.  Bollong  ( 150  U.  S.  85) 422 

Searl  v.  School  District    (133  U.  S.  553) 467 

Seibold,  Ex  parte   (100  U.  S.  371) 75,  78 

Sentell  v.  New  Orleans   (166  U.  S.  698 ) 218 

Shaffer  v.  Union  Co.  (55  Md.  74) 207 

Shanks   v.   Dupont    (3    Pet.    242) 28 

Sharpless  v.  Mayer    (59  Am.  Dec.  759) 161 

Shaver  v.  Pennsylvania  Co.   (71  Fed.  931 ) 288 

Shelby  County  v.  Union  Bank   (161  U.  S.  149) 364 

Shepherd  v.  Ware    (46  Minn.  174) 265 

Shively  v.  Bowlby    (152  U.   S.  48) 39 

Shollenberger  v.  Pennsylvania    (171  U.  S.  1) 218,  220,  491 

Shoobert  v.  De  Motta   (112  Cal.  215) 413 

Short  v.  Bullion    (45  L.  R.  A.   603) 214,   222 

Shreveport  v.    Cole    .(129   U.    S.    36) 424 

Schwab  v.   Bergren    (143  U.  S.  442) 273 

Sidekum  v.  St.  L.  Co.    (93  Mo.  400) 238 

Sing  Lee,  Ex  parte  (31  Am.  St.  R.  218) 215 

Singer  Co.  v.  Wright  (Ga.  25  S.  E.  249) .298 

Skelton  v.   State    ( 149   Ind.   641 ) 309 

Skinner  v.  Garrett  Co.   (96  Fed.  735) 180,  215,  348 

Slaughter's  Case   ( 13  Grat.  767 ) 44,  63,  336,  353 

Slaughter  House  Cases    (16   Wall.   36) 
v  9,  14,  19,  20,  24,  56,  58,  63,  66,  70,  71,  82,  90,  104,  106, 

168,  171,  218,  318,  360,  370,  371,  460 

Smith  v.  Ames  ( 169  U.  S.  466) 190,  319 

Smith  v.  People    (65  111.  375) 308 

Soon  King  v.  Crowley    (113  U.   S.  703) 199,  215,  332,  342 

Spangler,  In  re  (11  Mich.  299) 51 

Spencer  v.  Merchant  ( 125  U.  S.  345 ) 152,  164 

Spies  v.  Illinois   (123  U.  S.  131,  166) 8,  55,  71,   103 

Spring  Valley  Water  Works  v.  Schottler    (110  U.  S.  347) 

193,    199,    365,    369 

Spry  L.  Co.  v.  Sault,  etc.  Bank    (77  Mich.  199) 285 

Stanton   v.    Allen    (5   Denio,    434) 134 

Starin  v.  New  York    (115  U.  S.  257 ) 423* 

State  v.  Almy    (67  N.  H.  274) 309 

State  v.  Bates   ( 14  Utah,  293) 144 

State  v.  Bingham    (42   W.   Va.   234) 283 

State  v.  Broadbelt    (89   Md.   565) 322,    323 

State  v.  Broadbelt  (45  L.  R.  A.  433) 223 

State  v.  Buswell     (40    Neb.    158) 241 

State  v.  Caldwell    (69  Am.   St.  R.  465) 55 


TABLE    OF    CASES.  515 

Page. 

State  v.  Campbell   (42  W.  Va.  246) 272 

State  v.  Campbell   (64  N.  H.  402) 223 

State  v.  Chapman    (34  S.   E.  961) 356 

State  v.  Columbus    (34  Ohio  St.  572) 199 

State  v.  Creditor  (21  Am.  St.  R.  306) 82 

State  v.  Cross  (44  \V.  Va.  315) 232,  291 

State  v.  Dalton   (46  Atl.    (R.  I.)   234) 310 

State  v.  Darragh   (54    S.    W.    226) 242 

State  v.  Doherty     (60    Me,    504) 283 

State  v.  Doherty    (16   Wash,    382) 286 

State  v.  Dennoyer    (72    X.    W.    1014) 30 

State  v.  Dow    (47    Atl.    734) 312 

State  v.  Fernandez    ( 39  La.  Ann.  538 ) 94 

State  v.  Fire  Creek  Co.    (33  W.  Va.   188) 202,  343 

State  v.  Fireman's  Ins.  Co.  (45  L.  R.  A.  363) 133 

State  v.  Freight  Tax  Cases    ( 15  Wall.  232) 159 

State  v.  Frew    (24  W.  Va.  216) 473 

State  v.  Gadner    (58  Ohio  St.  599) 199 

State  v.  Gibson    ( 36  Ind.  389) 82 

State  v.   Gilbert    (56   Ohio   St.   575) 260 

State  v.  Gillman    (33    W.    Va.    146) 81 

State  v.  Goodwill    (33  W.  Va.  179) Ill,  171,  201,  203,  343 

State  v.  Griffin   (41  L.  R.  A.   177 ) 221 

State  v.  Grigg   (34  W.  Va.  79) t x 311 

State  v.  Haun    (61   Kan.   146) 208 

State  v.  Hay     (35    S.    E.    459) 225 

State  v.  Hunt  (2  Hill.  (S.  C.  1) 18,  33,  51 

State  v.  Jacksonville  Terminal    (27   So.  R.  221 ) 233,  357 

State  v.  Johnson     (61    Kan.    803) 171 

State  v.  Julow    (129   Mo.    172) 114 

State  v.  Knowles     ( 90    Md.    646 ) 82 

State  v.  Leffring    (55   N.   E.    168) 240 

State  v.  Lewis    (20    L.    R.    A.    52) 221 

State  v.  Loomis    (115   Mo.    307 ) 207 

State  v.   McCann    (21   Ohio  St.   198) 91 

State  v.  Main    (69  Conn.  123) 224 

State  v.  Mason   (55  S.  W.  636) 233 

State  v.  Mayor   (109  U.  S.  285) 225 

State  v.  Moore  (104  N.  C.  714) 175 

State  v.  Myers    (42    W.   Va.    822) 219 

State  v.  Nebraska  Distill.  Co.    (29  Neb.  700) 374 

State  v.  Ohio  Coal   Co.    ( 150   Ind.   21 ) 126 

State  v.  Pacif.  Co.  ( 52  La.  Ann.  — ) 188 

State  v.  Peel  Splint  Co.   ( 36  W.  Va.  802 ) 110,  203,  344 

State  v.  Prather   ( 19  Wash.  336) 234 

State  Railroad  Tax  Cases   (92  U.  S.  575) 304,  340,  408 


516  TABLE    OF    CASES. 

Page. 

State  v.  Santee    (82  N.  E.  445) 310 

State  v.  Schlenker    (84   N.   W.    68) 223 

State  v.  Sherwood   (83  N.  W.  527) 219 

State  v.  Smith  ( 18  Am.  &  Eng.  Corp.  Gas.  36) 354 

State  v.  Smith   (14  R.  I.  100) .223 

State  v.  Sponagle  (45  W.  Va.  415).. 47,  51,  143,  144,  146,  153,  261 

State  v.  Standard  Oil  Company  ( 121  N.  Y.  582) 134 

State  v.  Standard  Oil  Company   (49  Ohio  St.  137) 134,  372 

State  v.  Saunders    (66  N.  H.  39) 147,   286 

State  Tax  on  Foreign  Held  Bonds   (15  Wall.  300) 148,  158 

State  v.  Thereault    (70  Vt.  617 ) 312 

State  v.  Town    (Mo.   54   S.   W.   552) 292 

State  v.  Travelers'    Ins.    Co.    (47    Atl.    299) 302 

State  v.  Webster    (50  N.  E.  750) .199 

State  v.  Webster     ( 150    Ind.    607 ) 81 

State  v.  Wheeler    (44  N.  J.  L.  88) 221 

State  v.  Wheeler    ( 25    Conn.    290 ) 307 

State  v.  Williams    (10   S.  E.  876) 356 

State  v.  Wilson    ( 7   Kan.   App.   428 ) 208 

State  Bank  v.  Cooper   (2  Yerg.  599) 157 

Statts   v.    Board    (10    Grat.    400) 262 

Stearns  v.  Minnesota    (179  U.   S.  223) 366,    368,    399 

Steed  v.  Harvey  (72  Am.  St.  R.  789) 323 

Steel  Co.  v.  Erskine  (98  Fed.  2*15 ) 345,  350,  355 

Steffy  v.   Monroe    (41   Am.   St.  R.   436) 212,   213 

Stein  v.  Bienville  Water  Co.   (141  U.  S.  67) 361 

Stewart  v.  Northern  Co  (45  W.  Va.  734) 266 

Stewart  v.  Stewart  (27  W.  Va.  167) 256,  267,  270 

Stevens  v.    State    (89   Md.    669) 127 

Stockton  v.  Central  R.  R.  Co.   (50  N.  J.  Eq.  52,  489) 374 

Stone  v.  Mississippi  (101  U.  S.  814) 169,  181,  360,  361,  369 

Strader  v.  Graham   ( 10  How.  82) 107 

Strander  v.  West  Virginia  (100  U.  S.  303), 

31,  83,   105,   113,  326, -329,  356,  357,  453,  454 

Sturges  v.  Crowninshield    (4  Wheat.  200) 293 

Stutsman  v.   Wallace    (142   U.    S.   293) 408 

Sugg  v.  Thornton    (132  U.   S.   524) 256 

Sully  v.  Amer.  Nat.  Bank    (178  U.  S.  289) 350 

Suydam  v.   Williamson    ( 24   How.   427 ) 408 

Swan,  In  re   (150  U.  S.  648) 434 

Sweet  v.  Rechel  (159  U.  S.  380) 467,  469 

Swift  v.  Tyson    ( 16  Pet.  1 ) 406,  412" 

Syndicate  Co.  v.  Bradley  ( 7  Wyo.  228 ) 314 

Syracuse  Water  Co.  v.  City  (116  N.  Y.  167) 137 


TABLE    OF    CASE 8.  517 

T 

Page. 

Talbot  v.  Janscn  (3  Dall.  133) 21,  23,  24 

Taliofaro  v.   Lee    (97   Ala.   92) 165 

Tappan  v.  Merchants'  Bank    ( 19  Wall.   490) 303 

Tarbell's  Case    (13  Wall.  397) 47,  51,  53,  439 

Taylor  v.  Beckham   (178  U.  S.  548) 118,  120,  123,  165 

Taylor  v.  Porter    (4  Hill.   140) 157 

Teass  v.  City  of  St.  Albans   (38  W.  Va.  1) 174,  212,  217 

Telegraph  Company  v.  Indiana   (165  U.  S.  304) 340 

Telegraph  Company  v.  Massachusetts    (125   U.   S.   530) 340 

Telegraph  Company  v.  Texas    (105  U.  S.  460) 159 

Tennessee  v.  Davis    (100   U.   S.   257 ) 440,   442 

Tennessee  v.  Sneed  (96  U.  S.  69) 293 

Territory  v.  Ah  Lim  (9  L.  R.  A.  395) 227 

Terry  v.  Anderson    (95  U.  S.  628) 277,  278 

Thesen  v.  McDavis    ( 34  Fla.   440) 273 

Thomas  v.  Hot  Springs    (34  Ark.  553) 226 

Thomas  v.  Railroad  (101  U.  S.  71) 374 

Thompson  v.  Lee  County    ( 3  Wall.  327 ) 354 

Thompson  v.  Missouri    ( 171  U.  S.  380) 292,  311 

Thompson  v.  Utah  ( 170  U.  S.  346) 34,  36,  37,  39,  145 

Thompson  v.  \Vhitman     ( 18    Wall.    457 ) 256 

Tinsley  v.  Anderson    (171   U.  S.   101) 322,   336 

Toledo,  etc.  Co.  v.  Pennsylvania  Co.   (54  Fed.  730) 472 

Towle's   Case    (5   Leigh,    743) 19 

Town  of  Davis  v.  Davis    (40  W.  Va.  464) 174,  212,  217 

Town  of  Davis  v.  Filler   (47  W.  Va.  — ) 165 

Town  of  Danville  v.  Pace  (25  Grat.  1 ) 294,  307,  313 

Town  of  Danville  v.  Shelton   ( 76  Va.  325 ) 353 

Town  v.  West    ( 52  La.  Ann.  526 ) 358 

Townsend  v.  State  ( 147  Ind.  624) 222 

Transportation  Co.  v.  Pipe  Line  Co.   (22  W.  Va.  600) 133 

Trezza's  Case  (142  U.  S.  160) 232 

Tullis  v.  Lake  Erie  Co.   (175  U.  S.  348) 180,  325,  338 

Turner  v.  Richardson  (80  U.  S.  87,  21  Sup.  Ct.  295) 402 

Turner  v.  Turner    (44  Ala.  450) 253 

Turner  v.  Wilkes   (173  U.  S.  461) 396 

Tuthill,  In  re  ( 163  N.  Y.  133) 287,  306 

Tyler  v.  Judges  of  Registration    (55  N.  E.   812) 260 


U 

Underwood  v.  McVeigh    (23  Grat.  409) 251 

Union  Pacific  Railway  Co.  v.  Botsford   (141  U.  S.  250) 235 

Union  Refrigerator  Company  v.  Lynch    (177  U.  S.  149) 304 


518  TABLE    OF    CASES. 

Page. 

Union  Steamboat  Company,  Ex  parte  (178  U.  S.  317) 447,  448 

United  States  v.  Addyston  Pipe  Co.    (85   Fed.   271) 133,    378 

United  States  v.  Cruikshank    (92  U.  S.  542), 

18,  19,  46,  56,  57,  67,  72,  73,  92,  94,  235,  331,  461 

United  States  v.  Cruikshank    ( 1  Wood,  308 ) 461 

United  States  v.  Debs  (64  Fed.  724) 472 

United  States  v.  DeWitt    (9  Wall.  41 ) 179 

United  States  v.  Elliott     (64    Fed.    27 ) .472 

United  States  v.  Fox   (94  U.  S.  315) 179,  258,  396 

Uunited  States  v.  Gillies  ( 1  Pet.  C.  C.  159 ) 21 

United  States  v.  Gratiot  ( 14  Pet.  533 ) 39 

United  States  v.  Harris    (106  U.   S.   629 ) 330,  460,  462 

United  States  v.  Huckabee    ( 16   Wall.   434) 35,    39 

United  States  v.  Joint-Traffic  Association    (171   U.   S.   505), 

133,   373,  478 

United  States  v.  Jones    (109  U.   S.  513) 464,   467,  468 

United  States  v.  Kagama  (118  U.  S.  375) 29 

United  States  v.  E.  C.  McKnight  Co.    (156  U.  S.  1) 477,  488 

United  States  v.  Morrison    (4    Pet.    124) 408 

United  States  v.  Parkhurst-Davis  Co.    (176  U.  S.   317) 431 

United  States  v.  Patterson    (55  Fed.  605) 472 

United  States  v.  Perkins    (163  U.   S.  625) 159,   342 

United  States  v.  Reese    (92   U.   S.  214) 76,   77,   454,   462 

United  States  v.  Reid    (12  How.   361) 417,   428 

United  States  v.  Sanges   (48  Fed.  78 ) 95 

United  States  v.  Sayward   (160  U.  S.  497) 403 

United  States  v.  Sweeny   (95  Fed.  434) 472 

United  States  v.  Trans-Missouri  (166  U.  S.  290)  .  .133,  373,  478,  481 

United  States  v.  Waddill    (112  U.   S.   76) 94 

United  jStatesv. Wong  Kim_Ark    (169   U.    S.    696), 

16,  18,  26,  27,  29,  32,  34,  39 

University  v.  Rouse   (8  Wall.  443) 367 

Usher  v.  Pride    ( 15  Grat.  190) 262 


V 

Van  Brocklin  v.  Tennessee   (117  U.  S.  151 ) 159 

Vance  v.  W.  A.  Vandercook    (170  U.  S.  438) 79,  80 

Van  Duzen  v.   Newcomer    (40  Mich.   90) 309 

Van  Zant  v.  Waddell    (2  Yerg.  260) 157 

Varner  v.  Martin    (21   W.  Va.   534) 163 

Vegelan  v.  Gunner   (167  Mass.  92) 472 

Vermont,  etc.  Co.  v.  Whitehead  (2  N.  Dak.  82) 346 

Virginia  v.  Rives  (100  U.  S.  313)  ...  .46,  97,  106,  108,  328,  330,  461 
Virginia  Coal  Co.  v.  Thomas   (97  Va.  527) 158 


TABLE    OF    CASES.  519 

Page. 

Virginia  Devel.  Co.  v.  Crozier  I.  Co.    (90  Va.  126) 356 

Virginia,  Ex  parte  ( 100  U.  S.  339)  .  .9,  31,  108,  319,  387,  444,  451,  454 
Von  Der  Ahe,  In  re   (85  Fed.  959 ) 350 

W 

Wabash  Co.  v.  Illinois    (118  U.  S.  557) 188 

Wade  v.  Travis  County   (174  U.  S.  499) 399,  408,  412 

Waite,  In  re   (81  Fed.  359) 442 

Walker  v.  Jameson    ( 140   Ind.   591 ) 174,   212,   214 

Walker  v.  Sauvinet  (92  U.  S.  90) 92,  142,  144,  145,  279,  289,  308 

Walker  v.  Whitehead  ( 16  Wall.  314) 294,  295 

Wall,  Ex  parte  (107  U.  S.  265) 165,  279 

W7alla  Walla  City  v.  Walla  Walla  Water  Co.   (172  U.  S.  1) 

360,  364,  365 

Wally's  Heirs  v.  Kennedy   (2  Yerg.   (Tenn.)   554) 316 

Walston  v.  Nevin    (128  U.  S.  578) 164 

Wanek  v.  City  of  Winona  (80  N.  W.  851 ) 238 

Ward,  Ex  parte  (173  U.  S.  452) 291 

Ward  v.  Flood   (48  Cal.  36) 91 

Ward  v.  Maryland   ( 12  Wall.  418) 67,  159,  352 

Ward  v.  Todd    (103  U.  S.  327) 427 

Warren  v.  State   ( 19  Ark.  214) 272 

Washburn  &  M.  Mnfg.  Co.  v.  Reliance  M.  Ins.  Co.  ( 179  U.  S.  1 )  ...405 

Watkins  v.  Holman  ( 16  Pet.  25) 247,  250,  265 

Waters-Pierce  Oil  Co.  v.  Texas   (177  U.  S.  28) 305,  331 

Wayman  v.   Southard    ( 10  Wheat.  46) 296 

Weber  v.  Virginia   ( 103  U.  S.  346) 301 

Webster   v.    Reed    ( 11    How.   437 ) 40 

Welch  v.  Bowen  ( 11  Am.  &  Eng.  Corp.  Cas.  334) 226 

Western  Union  v.  Indiana    (165  U.   S.   304) 287,   340 

Western  Union  Co.  v.  Pendleton  (122  U.  S.  347)    173 

Western  Union  Co.  v.  Wyatt  ( 98  Fed.  335 ) 190 

Western  Union  Telegraph  Co.  v.  Ann  Arbor  R.  Co.   (178  U.  S. 

239) ....423 

Westervelt  v.  Gregg   (12  N.  Y.  209) '. 141 

Weston  v.  Ralston  (47  W.  Va.  — ) 217,  412 

Weyerhauser  v.  Minnesota    (176  U.  S.  550) 152 

Wheeler  v.  Jackson    (137  U.  S.  245) 277 

Wheeler  v.  Railroad    (178  U.  S.  321) 222 

Wheeling  Bridge   Case    ( 18   How.   421 ) 297 

Wheeling  Bridge  Co.  v.  Bridge  Co.    (138  U.  S.  287) 137 

Wheeling  Bridge  Co.  v.  Bridge  Co.    (34  W.  Va.  155) 137 

White  Breast  Co.  v.  People   (175  111.  51) 207 

White  v.  Milwaukee   (61  Wis.  536) 238 

Whiting  v.  West  Point   (38  Am.  &  Eng.  Corp.  Cas.  206) 354 


520  TABLE    OF    CASES. 

Page. 

Wild  v.  Serpell  (10  Grat.  405)    262 

Wiley  v.  Sinkler   (179  U.  S.  58) 7ff 

Wilkinson  v.  Leland    (2  Pet.  657 ) 307 

Williams  v.  Fears   ( 179  U.  S.  270) 357 

Williams  v.  Fears    (35  S.  E.  699) '. 357 

Williams  v.  Kirtland   ( 13  Wall.  306 ) 166,  396 

Williams  v.  Mississippi    (170  U.  S.  213) 328 

Williams  v.  Supervisors    (122  U.  S.   154) 158,   242 

Williams  v.  Wingo    (177   U.   S.   601 ) 137,    362 

Williamson  v.  Eggleston  ( 170  U.  S.  304) 333,  355,  396 

Williamson  v.  Massey   ( 33  Grat.  237 ) 353 

Williamson  v.  State  ( 130  U.  S.  189 ) 355 

Wilson  v.  Baltimore  &  P.  R.  Co.   (5  Del.  Ch.  524) 465 

Wilson  v.  Braden    ( 47    W.   Va.   — ) 250,    265 

Wilson  v.  Eureka    (173  U.  S.  32) 166,  311 

Wilson  v.  North  Carolina   ( 1G9  U.  S.  586 ) 165 

Wilson  v.  Wall     (6    Wall.    83) 30 

Windsor  v.  McVeigh   (93  U.  S.  274) 251 

Winona  v.  Minnesota  (159  U.  S.  526 ) 153,  351 

Wisconsin,  etc.  Co.  v.  Jacobson   (179  U.  S.  287) 218,  229 

Withers  v.  Buckley  (20  How.  84) 465 

Witherspoon  v.  Duncan    (4  Wall.  210) 148 

Witten  v.  St.  Clair   (27  W.  Va.  762) 258 

Witten  v.  Tomlinson    (160  U.  S.  231 ) 436,  439 

Wong  Kim  Ark,  In  re  (71  Fed.  382 ) 26,  32 

Wong  Wing  v.  United  States  ( 163  U.  S.  228 ) 37,  39 

Wood  v.  Brady  (150  U.  S.  18) 412,  416 

Wood,  In  re  ( 140  U.  S.  278) 83,  438 

Woodward  v.  Seely  ( 50  Am.  Dec.  453 ) 217 

Wooten  v.  State    (24  Fla.  335 ) 283 

Wright  v.  State    (88  Md.  436) 219 

Wulzen  v.  Board  (48  Am.  St.  R.  17 ) 145,  150 

,  Wunsten  v.   Laundry    ( 39   La.   Ann.    312 ) 258 

Wurtz  v.  Hoagland  (114  U.  S.  606 ) 164 


Y 

Yarbrough,  Ex  parte   (110  U.  S.  665) 76,  77,  78,  463 

Yazoo  &  M.  Valley  Co.  v.  Adams    (180  U.   S.   1,   21    Sup.   Ct. 

256) „ 421,423 

Yeaton  v.  Bank   (21  Grat.  593) 365 

Yeazel   v.  Alexander    ( 58   111.   254 ) 1 78 

Yick  Wo  v.  Hopkins   (118  U.  S.  356) 14,  106,  215,  299,  319 


TABLE    OF    CASES.  521 

Page. 

York  v.  Texas   (137  U.  S.  15) 256 

York  v.  Texas   (73  Tex.  651) 265 

Young  v.  Upshur  (42  La.  Ann.  362 ) 258 

Young's  Will  ( 123  N.  C.  358) 264 


Z 

/anesville  v.  Richards   (5  Ohio  St.  589) 352 


INDEX. 


ACCUSED. 

Presence   at   trial,   when   required 271 

Not  necessary  in  appellate  court 272,  349 

Becoming  witness,  examination  of 311 

Governor  fixing  date  of  execution 273 

ACQUISITION  OF  TERRITORY. 

Power  of  nation  to  acquire 35,  37 

Congress  has  power  to  govern 34,  39,  78 

ADDITIONAL  PUNISHMENT. 

Valid    on    second    conviction 280 

ADMINISTRATION. 

On  living  man's  estate  void 256 

An    in    rem    proceeding 255 

Charge  for  suretyship  against  estate 333 

ADULTERATION. 

Of  food 222 

Of  streams 221 

AFRICANS. 

Can  be  naturalized 31 

ALIEN  s. 

Who   are 17 

Congress    may    exclude 37 

Resident   aliens   not   citizens 19 

Protected  by  amendments  as  persons 14,  103,  106,  319 

ALIMONY. 

Not  decreed  without  personal  notice 263 

ALLEGIANCE. 

What    is 17 

Due   to   place  of   birth 17 

AMBASSADORS. 

Children  of  born  here  not  citizens 25 

523 


524  INDEX. 

Page. 
AMENDMENT    FOURTEENTH. 

Is  Magna  Charta  over  again 8,  47,  103 

Is  mixima  chwrta 10 

Protects  all  persons  under  jurisdiction  of  nation, ..14,  106,  319 

Supreme  Court  is  final  judge  of 47,  49,  51,  388 

States  bound  to  enforce  it 46 

Enlarges    federal    power 9,    11,    59,  103 

Is  no  revolution  in  the  government 12,  184,  186,  323,  384 

Sprung  from  Civil  War 14,  103 

Overrules    Dred    Scott    Case 29 

Primary  purpose  to  give  civil  rights  to  ex-slave8 14,  103 

But  not  limited  to  them 14,  103,  105 

Does  not  define  rights  guaranteed 15,  45,  64,  129,  144,  155 

Is  restraint  only  on  states,  not  on  persons 46,  108,  330,  461 

Grants  no  new  rights 15,  47,  385 

Does  not  grant  suffrage 73,   77 

Is  self -enforcing  and  retroactive 54 

Annul  prior  adverse  state  law 54 

Means  of  enforcement  by  nation.  .84,  128,  381,  420,  425,  432,  449 
Does  not  give  Congress  power  to  make  general  law  for  states, 

84,   128,   385,  460 

Character  of  Congressional  legislation  under.  .84,  128,  385,  460 
State  may  violate  by  legislative,  executive,  judicial  or  munic- 
ipal action 97,  319 

Fixes   citizenship,  national   and   state 7,   15,    17 

What  is  due  process  under 139,  155,  142,  464 

Its  exact  scope  must  not  be  given  in  advance 139,  315 

Does  not  prohibit  laws  merely  harsh  or  unjust 321,  324 

Does  not  authorize  women  as  lawyers 81 

Nor  to  vote . 18,  74 

Does  not  increase  privileges  and  immunities 47 

Protects   corporations   as   "persons". 43,  319 

Protects  Chinese  and  other  aliens  as  "persons" 106,  319 

Does  not  touch  mere  errors  of  state  courts  or  officers,  if  not 

contrary  to  amendment 142,  282,   348,  421,  429 

Does  not  affect  state  police  power 167,  186,  321,  384,  428 

Nor    taxing    power 149 

Nor   power   of   eminent   domain 164 

Nor  mere  civil  nor  criminal  procedure, 

107,  168,  273,  282,  289,  292,  294,  311,  343,  468 
Nor  prevent  proper  classification   in  laws, 

151,  321,  323,  327,  331 
.Nor   restrain   state   as    to   crime 428 

AMENDMENTS    OF    CONSTITUTION. 

First  ten   bind   only  nation 55,    103,  465 

Amendment     V.   magna   charta   binding   only   nation.... 8,  103 


INDEX.  525 

Page. 
AMENDMENTS  OF  CONSTITUTION— Continued. 

Amendment  XV.  does  not  per  se  give  colored  suffrage 76 

Amendment  XV.  prohibits  denial  of  vote  for  race  or  color, 

73,  76 
Amendment  XV.  allows  state  to  fix  other  qualifications. ..  .77 

ANIMALS  FERAE  NATURAE. 

Held  by  state  in  trust   for  people 127 

No   private  property   in 125 

ANNEXATION  OF   LAND   TO   CITIES. 

Proceeding   is  valid 336 

APPEAL  FROM  STATE  TO  SUPREME  COURT. 

Process  to  enforce  amendment 420 

Lies  regardless  of  value  or  amount  for  federal  question 422 

Must  be  federal  question  for 420,  423 

Must  be  independent  federal  question  for 420,  421 

No  appeal  if  non-federal  question  warrants  decision.  . .  .404,  422 

State  decision  must  be  against  right  claimed 421 

Federal  question  must  be  real,  not  pretense 423,  424 

No  appeal  from  state  to  U.  S.  Circuit  Court 421,  424 

Lies  for  state  in  habeas  corpus  cases 445 

Appeal  is  by  writ  of  error  in  both  law  and  equity  cases. . .  .424 
Does  not  lie  for  mere  error  in  state  decision, 

142,  282,  348,  421,  429 
Lies  in  eminent  domain  cases 464,  470 

APPEAL. 

Dismissal  if  convict  escapes 287 

State  may  deny  any  appeal 289 

Legislature  can  not  grant 295 

APPEARANCE  TO  TEST  JURISDICTION. 

Statute  may  make  it  a  general  appearance 256 

ARDENT  SPIRITS. 

State  may  prohibit  manufacture 80 

State  may  prohibit   sale 79,  224 

Liquors  sent   from  state  to  state 80 

State  may  license  and  regulate  sale 224,  298 

Keeping  in  possession  can  not  be  prohibited 81 

ARID  LAND. 

Acts  for  irrigation  valid 287 

ASSESSMENT    BY    CITY   FOR    IMPROVEMENTS. 

May  be  first  lien  on  property 241 

For   improvements,    valid 164 

Must  be  notice  to  owner 164 

Must  be  measured  by  actual  value  to  property 165 


526  INDEX. 

Page. 
ASSEMBLAGE. 

Right  of 93,  331 

ATTACHMENT. 

An  in  rem  proceeding 256,  266 

May  be  both  in  rem  and  in  personam 257 

Bond  may  be  required  of  non-residents 335 

ATTORNEYS. 

May  be  disbarred  without  jury 279 

Fees  included  in  costs  against  railroads 335 

Amendment  does  not  protect  right  to  practice 81 


B 
BAIL. 

Arrest    by,    valid 350 

BANK    OFFICER. 

Taking  deposit  knowing  insolvency 242 

BARBERS. 

Closing  on   Sunday .214,  218 

BODY. 

Right  of  inspection  of  on  trial 235 

BOOMS. 

Charges    by,    valid 233 

Subject  to  regulation  of  rates 181,  184,  192,  196,  342,  369 

BRIBERY    IN    ELECTION, 

Act  depriving  of  office   for 292 

BUILDING   ASSOCIATION. 

Usury  by 345 

BUILDING. 

Removal  of  through  street  may  be  forbidden 166,  311 

BURMESE. 

Can  not  be  naturalized 43 

BUSINESS,  PRIVATE. 

Can  not  be  interfered  with  by  state, 

181,  184,  200,  203,  320,  334,  371 
Can  it  be  limited  to  places  or  times 292,  310,  331 


INDEX.  527 

C 

Page. 
CARCASS. 

Removal    may    be    enforced 228 

CARS  ON  RAILROADS. 

Separate  for  white  and  colored  persons 87,  88  356 

Heating  by  stoves  may  be  forbidden 310 

Where   and    how    taxable 304 

CASE. 

Nature  of  tests  due  process 145,  156 

CATTLE. 

Diseased,   running  at  large 92 

State  may  exclude  diseased 92,  177 

Exclusion  must  be  only  to  prevent  contagion 93,  177 

Mexican  and  Texas,  or  Indian,  exclusion  of 93,   177,  178 

Cattle  may  be  impounded 

CEMETERIES. 

May    be    regulated 226 

Disinterments   may   be    prohibited v 226 

CHARGES    OF    RAILROADS. 

State  may  regulate 181,  190,  192,  196,  342,  369 

A  board  may  fix 198 

CHARTERS. 

Exclusive,  how  far  valid 358 

Must  be  for  public  purposes 370 

Must   be   on   consideration 361 

Must  amount  to  contract  with  state 361 

Very    strictly    construed 362 

Right  to  repeal,  or  alter 364 

Exemption    from    taxes 366 

CHINESE. 

Can    not    be    naturalized 32 

Children  of  resident  born  here  are  citizens 32 

Are   "persons"    protected   by    amendment 106,  319 

Act   against    employing,    void 330 

CIGARETTES. 

Sale  or  manufacture  of  may  be  denied  or  regulated, 

213,  281,  299 


528  INDEX. 

Page. 
CIRCUIT  COURT  OF  UNITED  STATES. 

Jurisdictional    amount 402,  404 

Must  be   federal  question 402,  420 

No    injunction    from   to    state   court 424,  431 

Release  of  state  prisoner  by  habeas  corpus 439 

Removal  of  suits  to  from  state  courts 425 

Can  not  punish  crimes  against  state 428 

CITIZENSHIP. 

State  and  National  defined  by  amendment 7,  17,  18,  29,  56 

Changed    by    amendment 17 

Who  citizens  of  Nation  and  States 17,  19,  20,  22 

Native  and  naturalized  citizens 17,  19,  24,  29 

State  and  National  different 20,  23,  56 

Can  not  be  state  citizenship  only 23 

But  may  be  national  alone 20 

Loss   of   state   citizenship 20,  23 

Indians  not  citizens 18,  29 

Women  and  children  are  citizens 7,  18,  19 

Colored   persons   are 24,  30 

Alien  women  marrying  citizens  become  citizens 28 

Filipinos  and  Porto  Ricans  not  citizens 32,  39 

Hawaiians  are  citizens 43 

American  women  marrying  aliens 28 

State  not  to  abridge  privileges  of  federal  citizenship 7 

"Citizen"    and    "person"    different 43 

Children  born  here  of  alien  residents  are  citizens 29,  32 

Ambassadors'  and  travellers'  children  born  here  not  citizens.  .25 

Children  born  abroad  of  citizens  are  citizens 26,  27,  28 

Children  born  here  of  alien  non-residents  are  aliens.  ..  .25,  26 

Children  of  Americans  domiciled  abroad  are  aliens 26 

African  woman  marrying  a   citizen   becomes   such 31 

Corporation  not  a  citizen,  but  a  "person"  protected. ..  .43,  319 

Lost    by    expatriation 20 

Admission  of  territory  as  state  makes  inhabitants  citizens ...  37 
State  citizenship  not  protected  by  amendment 56 

CIVIL  RIGHTS. 

Given  to  colored  persons  by  amendment 14,  103,  116 

But  given  to  all   alike 14,  105,  106 

Does  not  give  social   rights 85,  91 

CIVIL  RIGHTS  ACT. 

Made  to  execute  the  amendment 94,  112,  116 

Warranted  by  the  amendment 112,  116 

Gives  full  civil  rights 112,  116 


INDEX.  529 

CIVIL  RIGHTS  CASES, 

Important  as  defining  Fourteenth  Amendment 84,  385,  454 

Important  as  defining  powers  of  congress  under  it.. 84,  385,  454 

CLASSIFICATION 

Valid  in  taxation  and  other  laws, 

151,  321,  323,  327,  331,  337,  341,  362 

Must  be  fair  and  equal  for  all  situated  alike 320,  324 

Progressive  inheritance  tax  valid 340 

COAL. 

Screening  and  weighing  acts,  validity  of .  .  t 203,  206,  208 

COLORED   PERSONS, 

Are    citizens 24,  30 

Rights  in  hotels  and  theatres 84,  116 

Right  to  sit  as  jurors 82,  326 

Separate   cars    for 87,  356 

Given  civil  rights  by  amendment  and  Civil  Rights  Act, 

14,  85,  103,  116 

Not  given  social  rights  by  them 85,  91 

Separate  schools   for,  valid 89 

Not  given  votes  by  Fourteenth  Amendment 73,  75 

Can    be    naturalized 30 

Not  made  voters  by  Fifteenth  Amendment 76 

But  state  can  not  deny  them  votes  merely  for  color 73,  76 

Marriage  with  white  may  be  prohibited 82 

COMBINATIONS   AND   TRUSTS. 

Discussion 371 

COMMERCE,  FOREIGN  AND  INTERSTATE. 

Congress  has  full  power  over 80,  128,  177,  475,  489,  491 

Its  acts  exclude  and  supersede  state  law  as  to.. 129,  177,  476,  491 

How  far  national  law  of  affects  state  police  power 177 

No  state  tax  on  passengers  or  freight 159 

No  state  tax  on  exports  or  imports 159 

Combinations  and  trusts  against,  are  illegal 130,  373,  377 

As    to    liquors 79,  224 

COMMISSIONERS    OF    RAILROADS. 

Act  compelling  company  to  pay,  valid 180 

May   fix   rates 198" 

COMMON  CARRIFJRS. 

Rates  may  be  regulated  by  state. .  .181,  184,  189,  196,  342,  369 

COMPENSATION  FOR  PROPERTY  CONDEMNED. 

Must  be  paid  or  secured 163,  313,  466 


530  INDEX. 

Page. 
COMPETITION. 

Must  be  free  to  all. 481 

CONCEALED    WEAPONS. 

Laws   against,   valid 92,  290 

CONFINEMENT,    SOLITARY. 

Of  condemned  persons,   valid 93,  243 

CONGRESS. 

How  it  may  enforce   amendment 84,  116,  128,  449 

Can  not  enact  original  legislation  for  states. .  .84,  128,  385,  460 
Has  sole  power  over  interstate  and  foreign  commerce.  .128,  17-7 
Has  exclusive  power  over  territories  and  possessions  of  nation, 

36,  39,  78 
May  control  time  and  manner  of  electing  representatives  in 

congress    73,  75 

Has  power  of  eminent  domain 469 

Who  vote  for  representatives 75 

Defines  suffrage  in  territories 78 

But   not   in    states 73 

Has  police  power  for  federal  purposes 179 

CONSTRUCTION  OF  CONSTITUTION. 

Strict    and    liberal 8,  10,  49,  52,  381 

Supreme  Court  has  final  power  of,  federal 47,  49,  51,  389 

CONTAGION. 

May  be   regulation   to  prevent 176,  177,  178 

Removal  or  exclusion  of  affected  person  lawful 176,  227 

CONTEMPT. 

Punishment  for  without  jury,  is  constitutional.  .  .162,  336,  473 
Power  to  punish  for  inherent  in  courts,  congress  and  leg- 
islature  162,  473 

CONTRACT. 

Right  of  guaranteed  by  amendment, 

94,  110,  113,  130,  288,  343,  475 
Certain  contracts  may  be  prohibited  by  state, 

128,  130,  179,  207,  232 

Federal  courts  say  finally  whether  there  is  a  contract.  .390,  399 
Right  of  given  by  Civil  Rights  Act  to  colored  persons.  .  .94,  113 

State  can  not  impair  obligation  of 97,  358.  409 

Under  contract  clause  must  be  a  "law"  to  impair,  not  a 

decision 97 

Limitation  of  suit  on,  when  valid 274,  276 


531 

Page 
CONTRACT— Continued. 

State  regulates  law  of  contract 128,  245 

Acts  validating  void  contracts 278,  313,  345 

Act  against  railroad  requiring  waiver  of  damages  by  em- 
ployees  287 

CONVEYANCE  AND  DEVISE. 

Controlled  by  state  law 128,  179,  245 

CONVICT. 

Solitary  confinement  of,  valid 93,  243 

CONVICTION  OF  MINOR  OFFENSE. 

Under  charge  of  greater,  valid 288 

"CORNERING"    MARKET. 

Is  unlawful 130,  217,  371 

CORPORATIONS. 

Are  not  citizens 43,  331 

Are  "persons"  protected  by  amendment 43,  319 

Foreign  may  be  excluded  by  state 44,  305,  330 

Foreign  share  in  assets  of  insolvent  corporation 349 

Foreign  must  conform  to  state  law 43,  305,  330 

Taxation    of 304,  340,  349 

Forfeiture   of   charter,    for   misuser 278,  373 

Dissolution    by    court 278 

Penalty  on  for  tax  delinquency 154,  287,  298 

Charter  can  not  exempt  from  police  regulation, 

168,  178,  185,  192,  369 

Charter  may  exempt  from  taxation 366 

Exemption  rigidly  construed 366 

Carriers   must    serve   all    alike 188 

May  be  compelled  to  do  so  by  mandamus 188 

Charges  of  public  corporations  may  be  fixed  by  state, 

181,  184,  189,  196,  199,  369 
Act  to  compel  stated  payment  of  wages,  valid, 

180,  206,  208,  215,  348 
No  regulation  of  charges  by  private  corporations, 

181,  200,  320,  334 

Taxation  on  cars  of  used  in  a  state 304,  349 

Taxation    on    express    companies 305 

Void  contracts  of  may  be  cured  by  state 345 

Exclusive    charters    valid 358 

Exclusive    charters    rigidly    construed 362 

Such  charters  must  amount  to  contract  to  be  valid 361 

Right  to  alter  or  repeal  such  charters 364 


532  INDEX. 

Page. 

COURTS. 

State  decisions,  effect  in  federal  courts, 

179,  245,  393,  395,  405,  407,  416,  428,  467 

Federal  court  follows  latest  state  decisions 407 

Overruled  state  cases,  effect  of  in  federal  courts 407,  411 

State  decisions  final,  in  federal  courts  as  to  title  to  land, 
I  179,  245,  395 

Also  as  to  what  is  state  law 395 

As  to  contracts,  effect  of  state  decisions.  128,  245,  390,  399,  408 

State    decisions    as    to    vested    rights 358,  395,  408 

f      Federal  form  own  judgments  as  to  contracts  and  property ..  399 

State  decision  final  on  state  criminal  law 417,  428 

State  criminal  jurisdiction  over  federal  officers 439 

Can  alone   exercise   judicial   power 295 

State  fixes  its  courts  and  their  procedure, 

147,  273,  289,  311,  343,  468 
Court  first  in  possession  of  subject  has  preference 427 

CRIME   AGAINST   STATE. 

State   decisions   final 417,  428,  425 

Not  if  federal  constitution  or  law  is  violated 430 

No  federal  injunction  against  state  prosecution 431 

State  may  dispense  with   indictment 144,  307,  428 

Form  of  indictment  alone  for  state  regulation 289 

State  may  dispense  with  unanimous  verdict 288 

State   may   allow   struck    jury 281 

State  power  over  not  impaired  by  amendment 107 

Criminal  law  rests  on  police  power  of  state 107,  128,  170 

CURATIVE    STATUTES. 

Of  taxation 242,  354 

Of  tax  deeds 166 

Of  void  proceedings,  not  valid 283 

Of  usury 313 

Of  contracts 278,  313,  345 

Of  bad  criminal  proceedings,  not  valid 283 

of  recognizance 291 

CURTESY. 

Legislature  can  not  destroy  right  of 273 

D 

DEAD  ANIMALS. 

Act  to  compel  removal  of,  valid 228 

DEATH  SENTENCE. 

Execution  by  electricity  valid  law 93 

Without    jury,    when    valid 161 

Time  for  execution,  when  may  be  fixed  by  governor 273 


533 

Page. 
DEBS  CASE. 

No  jury  required  in  contempt  case 473 

Notable  as  to  law  of  strikes 472,  473 

DECISIONS. 

Of  state  courts,  force  in  federal  courts, 

179,  245,  393,  395,  405,  416,  428 

DEED. 

Decree  for,  when  passes  title  to  land  out  of  state, 

247,  249,  265 

DEFENSE. 

Denial  of  makes  judgment  void 251,  287 

DELEGATION    OF    POWER. 

Of  Taxation  may  be  conferred  on  counties  and  municipalities, 

298,  354 

Counties  and  municipalities  can  not  exempt  from  taxes  with- 
out statute 364 

Of  police  power  on  counties  and  municipalities. . .  .174,  211,  212 

DENTISTRY. 

Practice  of,  license  may  be  required 82 

Diploma   may  be  required 82 

DESCENT    AND    DISTRIBUTION. 

Are  tested   by  state  law 179 

DISEASED   PERSONS. 
See  CONTAGION. 

DISTRESS   FOR  RENT. 

Is  due  process  of  law 161 

DIVORCE. 

Does  not  require  personal  notice 253 

Fraudulent   jurisdiction    for,    void 254 

No  decree  for  alimony  without  personal  notice 263 

DOGS. 

Shooting  of  by  police 218,  290 

Property  in 218,  290 

DRAINAGE    OF    SWAMP    LANDS. 

Act  to  compel  is  valid 287 

Cost  of  may  be  charged  to  county  and  owner 287 

DRED    SCOTT   CASE. 

Annulled  by   Fourteenth   Amendment 29 


534  INDEX. 

Page. 
DRUMMING  FOR  PATRONAGE. 

May  be  forbidden 226 

DRUNKARDS. 

Restraint  of  constitution! 280,  309 

DUE   PROCESS   OF   LAW. 

Amendment  does  not  define  it 15,  45,  64,  139,  144,  155 

General   definition   of . . . 139,  155 

Can  not  be  defined  in  advance 64,  139 

Equivalent  to  "Law  of  the  Land" 140,  142 

Born  of  Magna  Charta 8 

^^Process  used  must  be  alike  for  all 142 

New  laws  do  not  violate  the  clause 64,  144 

What  is,  depends  on  case 145,  156 

Judicial  process  not  always  necessary 146,  148,  157 

Judicial  process  necessary  when  life  or  liberty  at  stake 147 

State  may  dispense  with  indictment 144,  307,  429 

Criminal  and  civil  jurisdiction  consistent  with 168,  170 

Taxation  without  notice  or  suit  is 150 

Distress  for  rent,  or  tax,  is 145,  161 

Police  action  is 167,  175 

Power  of  eminent  domain  is 464 

Clause  of  in  Amendment  V.  binds  only  nation 8,  103 

Clause  of  in  Amendment  Fourteen  binds  only  states 46 

Clause  of  binds  all  state  agencies 97 

Mere  errors  of  courts  do  not  violate  clause, 

142,  282,  348,  421,  429 

Punishment  of  contempt  without  jury  is 162,  336,  473 

Chancery  jurisdiction  is 147,  285,  473 

Does  not  demand  jury  in  state  court 82,  145,  279,  468 

Usual  course  in  the  matter  is 146,  153,  155 

Due  process  at  adoption  of  amendment  remains  such 157,  168 

f  Death  sentence  without  jury  on  confession  is 161 

Amendment  does  not  enlarge  due  process 168 

Changes  with  time 64,  292,  320 

Demands  jury  in   some  nuisance   cases 216 

Personal  judgment  without  notice  is  not 244 

Sentence  for  felony  without  presence  of  accused  is  not 271 

Judgment  in  rem  without  notice  is 251 

Forfeiture    for    taxes    is 154,  260 

Does  not  require  jury  in  equity 147,  285,  473 

Remedies  fixed  by  state  and  may  change, 

147,  273,  282,  289,  292,  311,  343,  468 
Does  not  require  jury  of  mixed  color 328 

i       Does  not  require  jury  in  eminent  domain  cases 468 


INDEX.  535 

E 

Paee 
EASEMENT,   PUBLIC. 

Not  affected  by  amendment 288 

EIGHT    HOUR    LABOR    LAW. 

Is  it  valid   214,  222,  350 

EJECTMENT. 

An    in   rein   proceeding 25" 

ELECTION  CONTEST. 

Act  regulating,  valid 279 

Act  defeating  one  for  bribery  in  election 292 

ELECTRICITY. 

Execution   by,    law   valid 93 


EMIGRANT    AGENT. 

Tax  on,  valid 357 

EMINENT  DOMAIN. 

Definition 464 

Amendment  does  not  affect  power  of  states 464 

Requires  due  process 465 

State  may  fix  the  process 465,  467 

Taking  must  be  for  public  purpose 160,  163,  306,  310,  469 

Compensation  must  be  paid  or  secured 163,  313,  466 

Compensation  may  be  fixed  by  jury  or  otherwise 163,  468 

Appeal  lies  to  Supreme  Court 465,  470 

Franchise  may  be  condemned 366,  469 

Nation  has  power  of 469 

Property  injured  under  lawful  police  requires  no  compen- 
sation.  148 

Taking   water   without  pay   illegal '. . .  .241 

Is  an  in  rem  proceeding 255 

May  be  on  personal  notice  or  publication 255 

Amendment  applies  to 280,  465 

Exclusive  charters  subject 366 

Fifth  Amendment  restrains  nation  as  to 465 

Necessity  of  taking  is  for  legislature 468 

ENFORCEMENT  OF  AMENDMENT. 

It  is  first  duty  of  states 46 

Of  nation  on  failure  of  states 46,  51 

Federal  processes  for 84,  128,  381,  420,  425,  432,  449 

ENGINEERS,   LOCOMOTIVE. 

May  be  examined  as  to  color  blindness 228 


536  INDEX. 

Page. 
EQUAL   PROTECTION   OF    LAW. 

Amendment  does  not  define  it 15,  315 

,  »-  Can  not  be  defined  in  advance 315 

Clause  same  as  Declaration  of  Independence 316 

General    definition   of 315,  321 

Is  for  all  persons 14,  105,  318,  320 

Binds  all  agencies  of  state 97,  319 

Classification  is  not  contrary  to  clause, 

321,  324,  331,  337,  341,  352 

Classification  must  not  be  arbitrary 322 

Colored  persons'  right  as  jurors  is  under  this  clause. . .  .82,  326 

Taxation  as  affected  by  clause 323,  351 

Corporations  protected  by  clause 43,  319 

Aliens  protected  by . . 14,  103,  106,  319 

Law  or  procedure  to  be  alike  for  all  similarly  situated, 

316,  320,  342 

Separate  cars  for  colored  and  white  persons 87,  88,  356 

Separate  schools  for  colored  and  white  persons 89 

No  bar  to  classification  for  taxes 323,  337 

Progressive  inheritance  tax  does  not  violate 340 

Tennessee  Case  defined  it  before  Amendment 316 

Changes  with  time. 170,  230,  320 

EQUITY. 

No  jury  right  in 147,  285,  473 

ERROR   IN  TRIAL. 

Mere  error  not  undue  process 142,  282,  348,  421,  429 

ESCAPED    CONVICT. 

His  appeal  may  be  dismissed 287 

ESCHEAT. 

An  in  rem  procedure 256 

^ESTRAY    LAWS. 

Are  constitutional 226 

Proceeding  is  in  rem , 264 

EVIDENCE. 

State  fixes  and  changes  rules  of 292,  311,  418 

How  far  state  rules  go  in  federal  courts 418 

Accused  as  witness,  examination  of 311 

Tax   deed    as    evidence -. 166,  283 

Statutes  making  certain,  proof  of  guilt 283 

EXCLUSIVE    CHARTERS,    GRANTS,    CONTRACTS. 

Are    valid 82,  132,  178,  181,  193,  358 

Are  strictly   construed  against  grantee 362 


INDEX.  537 

Page. 
EXCLUSIVE  CHARTERS,  GRANTS,  CONTRACTS— Continued. 

Must  amount   to   contract   to   be  valid 361 

Must  be  for  public  purpose 370 

Right  to  repeal   or  modify 364 

Exemption  from  taxes 366 

EXECUTION  OF  DEATH  SENTENCE. 

By    electricity,    law    valid 93 

Governor  may  fix  day  by  statute 273 

EXEMPTION. 

From   taxation  valid 336,  353,  366 

Repeal   of 368 

Must  be  for  public  purpose 370 

Must  amount  to  contract 361,  366 

Xone,  if  state  constitution  forbids 368 

Strict  construction  of 366 

EXPATRIATION. 

What 20 

Right  exists 20 

How  effected 22 

Destroys   citizenship 20,  24 

EXPORTS   AND   IMPORTS. 

No  state  taxation  on 159 

EXPRESS    COMPANY. 

Taxation  of 305,  332,  353 


F 

FEES   OF   ATTORNEYS. 

Act  to  include  in  costs  against  railroad,  valid 335 

FEDERAL    PROCESS    TO    ENFORCE    AMENDMENT. 

Appeal  to  United  States  Supreme  Court 420 

Constitutional  question  must  exist 402,  420 

It  must  be  real,  not  pretense 424 

No  amount  required  for  such  appeal 422 

By  habeas  corpus 432 

By  removal  to  federal  from  state  court 425 

No  injunction  from  federal  to  state  court 424,  431 

No  appeal  to  U.  S.  Circuit  Court  from  state  court 424 

By    mandamus 445 

By  congressional   action 449 


538  INDEX. 

Page. 
FEDERAL  QUESTION. 

Must  exist  under  amendment  in  federal  courts 402,  420 

Must  control  case  for  appeal  from  state  to  Supreme  Court, 

404,  421 

What  is  federal  question 397,  402,  420 

Mere  error  of  state  court  not,  unless  against  amendment, 

142,  282,  348,  421,  429 

Must  exist  for  habeas  corpus  for  state  prisoners 439 

FEDERAL    SECURITIES    AND    SALARIES. 

No   tax   by   state   on 159 

Nor  on  those  of  state  by  nation 159 

Fellow  servants,  act  to  make  employers  liable  for  negligence 

of,  valid 180,  325 

Federal  courts  not  bound  by  state  decisions  as  to 417 

FENCING  RAILROADS. 

Act  to  compel  is  valid 217,  325 

FILIPINOS. 

Not   citizens 32,  39 

Children  of  are 34 

Can  not  be  naturalized 32 

Governments   of   by   congress 34,  39 

Entitled    to    personal    rights    of    liberty 34,    36,    40,43 

FIRES. 

Act  making  railroads  liable  for,  valid 180,  335 

Excluding  them  from  benefit  of  act  to  prevent  fires,  void.  .  .  .335 

FISH. 

Laws  to  preserve  are  valid 220,  312 

Sale  of  in  certain  places  can  not  be  prohibited 292,  310 

State  may  limit  right  to  catch  to  its  own  people 312 

FLAG,    NATIONAL. 

Use  of  as  advertisement  lawful 333 

Does  Constitution  follow  flag  ? 34,  36,  40 

FOOD  ADULTERATION. 

Law  against,  valid 222 

FORESTALLING  AND   REGRATING. 

Unlawful  by  common  law 131 

Trust  combinations  against  law  of 131 

FORFEITURE  OF  LAND  FOR  TAXES. 

Is  constitutional 150,  260.  287 

FREEDOM  OF  CONTRACT  AND  TRADE. 

Protected  by  amendment 109,  130,  343,  371 


I\DI:\.  539 

Page. 
FREE    PASSES   ON   RAILROADS. 

Act  compelling  is  void 241 

FREIGHT   RATES. 

May  be  regulated 181,  189,  196,  342,  369 

Board  may  fix 198 

Must  be  reasonable  and  give  some  profit MM),  198 

FRUIT    TREES. 

Destruction  of  diseased  may  be  required 224 

G 

GAME. 

Preservation   of 127 

No  private  property  in 125 

Held  by  state  in  trust  for  people 127 

GAMING. 

Legislation    against,    valid 232 

Contracts  made   in,   void 232 

GARNISHMENT. 

In  rem  proceeding  and  valid 266 

GAS,  NATURAL. 

Waste  may  be  restrained  by  statute 124,  222 

"GOVERNMENT  BY  INJUNCTION." 

What    it    is 471 

So-called  held  constitutional 471 

GRAND    JURY. 

State  may  dispense  with 144 

State  may  proceed  by  information 144 

GRANTS,    EXCLUSIVE. 

Are    valid 82,  132,  178,  181,  193,  358 

Construed  strictly  against  grantee 362 

Right  to  repeal 364 

Exemption  from  taxes 364 

Must  be  for  public  purposes 370 

Must  amount  to  contract  to  be  valid 381 


540  INDEX. 

H 

Page. 
HABEAS   CORPUS. 

A  means  of  enforcing  amendment 432 

Lies  to  relieve  one  held  in  violation  of  amendment 432 

Lies  in  federal  court  against  state  in  such  case 432 

Li£s  for  federal  officer  prosecuted  by  state 439 

Does  not  lie  for  state  officer  prosecuted  by  nation 439 

Appeal  to  Supreme  Court  lies  for  state  in  case  of 445 

Used  with  caution  by  federal  courts  against  state  authorities, 

433 

Appeal  is  preferred  by  Supreme  Court 435 

State  criminal  jurisdiction  over  federal  officers 432,  439 

Habeas  corpus  not  a  writ  of  error 434 

Necessity  of  federal  question  for,  in  federal  courts 439 

Not  used  by  federal  courts  to  obstruct  state  procedure 438 

HABITUAL    CRIMINALS. 

Punishment  on  second  conviction 280,  355 

HAWAIIANS. 

Are  citizens 43 

HEALTH,    PUBLIC. 

State  and  municipalities  have  large  power  to  preserve, 

169,  172 
HOMESTEAD,    RIGHT    OF. 

A  federal  privilege  protected  by  amendment 94 

HOTELS. 

Can  charges  of  be  regulated  ? 182 

Colored  persons  in 84 

HUSBAND. 

Act   divesting  curtesy   of,   void 273 

I 

IMPROVEMENTS. 

Assessment  on  lot  owner  for 1 64 

Must  be  notice 164 

Assessment  must  be  by  value  to  property,  not  by  foot 165 

INCOME   TAX. 

State  and  nation   may   impose 378 

United  States  Supreme  Court  holds  it  constitutional 378 

INDIANS. 

Not  citizens 18,  29 

Can  be  naturalized . .  30 


IXDKX.  541 

Page. 
INDICTMENT. 

State  may  substitute  information   for 144,  307,  428 

Form  of  is  alone  for  state 289 

INEBRIATES. 

Detention  and  control  of 280,  309 

INFECTIOUS  DISEASES. 

May  be  regulation  to  prevent 169,  172,  176,  178 

Removal  or  exclusion  of  persons  affected  is  lawful 176,  227 

Quarantine    valid    against 228 

INFORMATION. 

May  be  substituted  for  indictment 144,  307,  428 

INHERITANCE   TAX. 

Is  constitutional 340 

INJUNCTION. 

None  from  federal  to  state  court 424,  431 

"Government  by  injunction" 471 

Penalty  on  dissolution  of,  act  valid 241 

To  prevent  prosecution  of  suit  in  another  state 256 

Against  strikes 471 

Contempt  of  punishable  without  jury 336,  473 

INNKEEPER'S  LIEN. 

Is  valid 350 . 

INNS. 

Can  state  fix  charges  of 182 

IN  REM  PROCEEDINGS. 

Valid  without  personal  notice 246,  251,  257 

Attachments  are 252,  257 

Divorce  is  in  nature  of 253 

Suits  as  to  personal  status  are 253 

Recovery  of  specific  property  is 252,  257 

Suits  to  charge  or  divide  property  are 252,  257 

Condemnation  of  land  is 255 

Escheat  is 256 

Distress  for  rent  is 264 

Suit  to  remove  ctoud  from  title  is 252.  257,  265 

Ejectment  is 257 

Probate  of  wills  is 263 

Grant  of  administration  is 255 

Suit  to  cancel  deed  is 257 

Suit  to  foreclose  mortgage  is .... .- 257 

Suit  for  specific  performance  is 263 


542  INDEX. 

Page. 
INSANE   CONVICT. 

Jury  to  try  his  insanity 283 

INSANITY. 

Is  jury  necessary  to  ascertain 307 

INSPECTION. 

Of  body  on  trial 235 

Of  mines 209 

Of  milk 

Of  food 222 

INSURANCE    POLICY. 

Act  fixing  value  is  valid 332 

Act  requiring  payment  in  given  time  is  valid 343 

INTEREST,    ADDITIONAL. 

Act  giving  on  affirmance  of  judgment  valid 314 

INTERSTATE  COMMERCE. 
See  COMMERCE. 

IRRIGATION   OF   ARID   LAND. 

Act  for,  valid 287 


J 

JUDGE. 

Must  be  de  jure  or  de  facto  for  judgment 291 

JUDGMENT. 

Without  personal  notice  void 244,  248,  263 

Otherwise  in  in  rem  proceedings '  .246,  251 

Service  of  process  outside  state,  effect  of 248,  265 

Want  of  jurisdiction  may  be  shown  against 255 

No  personal  judgment  on  publication 248 

On  notice  to  one  partner  only 256 

Denial  of  defense  renders  void 251,  287 

In  one  state  not  a  lien  in  another 264 

Effect    of    in    another    state 246,  247 

Legislature  can  not  impair 297 

In    criminal    cases 271 

Decree  to  transfer  land  in  another  state 247,  249,  265 

As  to  set-off,  notice  of 250 

No  personal  on  non-resident  without  personal  notice 247 

Deposit  as  condition  of  defense  can  not  be  required 287 

Judge  must  be  de  jure  or  de  facto  for 291 

JUDICIAL  PROCESS. 

Not  always  necessary  for  due  process 146,  148,  157 


INDEX.  543 

JUDICIAL    LEGISLATION. 

It  is  void 295 

JURISDICTION. 

Judgment  without  is  void 244 

Want  of  may  be  shown  against  judgment 255 

Personal  notice  necessary  for  personal  judgment 244,  263 

Personal  notice  not  necessary  in  in  rem  cases 246,  251 

Federal  question  necessary  in  federal  courts 402,  420,  429 

Federal  question  necessary  on  appeal  to  Supreme  Court, 

404,  420 
Amount  for  in  Circuit  Court  on  constitutional  question, 

402,  404 

Xo  amount  required  on  appeal  to  Supreme  Court 422 

Fraudulent — to  get  divorce 254 

Appearance  to  question,  statute  may  make  general  appearance, 

256 

To  pass  title  to  land  outside  the  state 247,  249,  265 

None  in  federal  court  over  state  crime 428 

None  in  state  court  over  federal  crime 428 

Of  Circuit  Court,  of  habeas  corpus  for  state  prisoner 432 

Must  be  federal  right  for  it 439 

No  federal  to  enjoin   state  court 424,  431 

Pretense,  not  good  in  Supreme  Court 424 

Court  first  in  possession  of  subject  has  prefereice 427 

JURORS. 

Colored  persons'  right  to  serve  as 82,  326 

Women  not  entitled  to  serve  as 356 

State    fixes   qualifications 327 

Mixed  color  not  required 328 

JURY. 

Must  be  twelve,  unless  state  constitution  otherwise  provides, 

144,  286 

Unanimity  of  may  be  dispensed  with  by  state. ,% 288 

Colored  persons'  right  to  serve  on 82,  326 

Mixed  of  white  and  colored  not  required 328 

Women  no  right  to  serve  on 356 

Waiver  of . . . . 311 

Struck   jury,   valid 281 

No   right  to  in   equity 147,  285,  473 

Nor  in  lunacy  inquisition ; 307 

Nor  in  disbaring  attorney 279 

Nor  in  contempt  case 162,  336,  473 

Nor   in   taxation 146 

Nor  in  nuisance  case,  in  equity 147,  216 


544  INDEX. 

Page. 
JURY— Continued. 

Nor  in  municipal  trials 273 

Nor  in  distress  case 161 

Nor  in  condemnation  of  land 163,  468 

Not  guaranteed  in  state  court  by  amendment 82,  145,  279 

Challenges  of  jurors  may  be  regulated 343 

State  may  fix  number  to  constitute 144 

Death  sentence  on  confession  without 161 

Not  required  merely  to  fix  punishment 309 

State  may  fix  qualification  of  jurors 327 


K 

KENTUCKY  GOVERNORSHIP  CASE. 

Declares  independence  of  state  governments 120,  123 

Holds  public  office  not  private  property 120 

Holds  right  of  state  to  declare  election  of  state  officers  finally, 

120 

KENTUCKY   AND   VIRGINIA   RESOLUTIONS. 

Referred  to..  .  .49 


L 
LABOR. 

Act   giving  preferred   lien   valid 234,  336 

Hours  of,  statute  limiting 214,  222,  350 

Payment  for  in  advance 356 

Payment  of  in  scrip 201,  203,  205,  208 

LAND. 

Forfeiture  for  taxes  valid 154,  260 

Registration   of  title   to 259 

Torrens  System  of  Registration  valid 260 

Title  to  governed  by  state  law  in  federal  courts, 

128,  179,  245,  395 

LAUNDRIES. 

Power  to  regulate  and  locate 214,  227 

"LAW    OF    LAND." 

Same  import  as  "due  process  of  law" 140,  142 

LEGISLATURE. 

Can  not  exercise  judicial  function 295 


INDEX.  545 

Page 
LIBERTY. 

What  it  means 109,  130 

Not  merely  freedom  from  imprisonment 109 

Covers  right  to  go  and  come,  labor  and  contract 109,  343 

Protected    by    Fourteenth    Amendment 7,  11,  109 

Filipinos  and  Porto  Kicans  entitled  to  civil  liberty, 

34,  36,  40,  43 
Supreme  Court  final  judge  of  liberty 388 

LICENSE. 

May  be  required  for  business 151,  298 

Different  rates  on  different  businesses 151,  323,  333 

Classification  of,  constitutional 151,  323 

Federal  a  mere  tax,  not  a  permit 300 

LIEX. 

Preferred  for  labor  is  valid 234,  336 

Judgment  not  a,  in  another  state 264 

Of   innkeeper,   valid 350 

Preferred  for  supplies  to  certain  companies  valid 355 

LIFE. 

Protected   by  amendment 11,  103,  107 

Includes  everything  pertaining  to  the  person 109 

LIFE.   LIBERTY  AND   PROPERTY. 

Protected  by  amendment 7,  103,  107 

LIFE    INSURANCE. 

Act  giving  penalty  for  non-payment  valid 343 

LIMITATION,    STATUTE  OF. 

Are  valid 274 

Extension  and  shortening  of  time,  when  valid 274,  276 

Act  of  as  to  tax  deed 313 

As  to  appeal  from  railroad  board 357 

LIQUORS,   SPIRITUOUS. 
See  ARDEXT  SPIRITS. 

LIVERY    STABLES. 

Power   to   regulate 358 

LOG    BOOM. 

Rates  of  may  be  fixed  by  state 181,  184,  192 

LUNACY   INQUEST. 

Does  it  require  a  jury  ? 307 


546  INDEX. 

.       M 

Page. 
MAGNA   CHARTA. 

History  and  character 8,  98,  317 

MANDAMUS. 

From  Supreme  to  state  court 445 

To  compel  railroads  to  serve  all  alike 188 

To  inferior  courts  on  reversal  of  judgment 447 

Not  to  restore  disbarred  attorney 448 

MARRIAGE.  ? 

Between  white  and  colored  may  be  prohibited  by  state 82 

MEATS. 

Selling  in  certain  localities  can  not  be  prohibited 292,  310 

MECHANIC'S  LIEN  LAW. 

Is  valid 283 

Is  lien  for  sub-contractor  valid  ? 284 

MEDICINE,    PRACTICE    OF. 

License  or  certificate  may  be  required 81,  239 

MILL. 

Act  granting  private  right  valid 279 

MILK. 

Ordinance  requiring  inspection,  valid 222 

MINES. 

Act  for  inspection  and  ventilation  valid 209 

MINORS  IN  SALOONS. 

Act  prohibiting  is  valid 94 

MOBS. 

Municipal   liability  for 225 

MONGOLIANS. 

Can  not  be  naturalized 32 

MONOPOLIES   AND   TRUSTS. 

Law   against 82,  129,  130,  134,  136,  217,  351,  371,  476,  480 

Unlawful  by  common  law 131,  373 

Exclusive  grants  valid 132,  136,  181,  185,  192,  358 

See  EXCLUSIVE  GRANTS. 

MORTGAGES. 

Void  mortgages  of  foreign  may  be  validated 315 


IXDEX.  54; 

Page. 
MUNICIPAL    CORPORATIONS. 

Have  police  power 167,  174,  211,  230 

Liability   for  mobs 225 

Have  taxing  power 299,  354 

But  only  as  legislature  or  charter  gives  it 354 

Can  not  delegate  police  power 212,  369 

Sanitary  regulations  of  valid 213 

_:ulation  of  laundries  by 214,  227 

Annexation  of  land  to 536  « 

A-sessment  for  improvements 164 

Notice  of   necessary 165 

Are  deemed  the  state  when  violating  amendment 97,  319 

Classification  of  for  public  burdens  valid 333 

Powers  of  may  be  changed  by  legislature 355,  365 

May  prohibit  obstruction  of  streets 166,  229 

May  abate  public   nuisances 147,  215,  230 

Ordinances  presumed  valid  as  to  police 212 

But  must  be  reasonable 212,  223 

Courts  may  hold  police  ordinance  void..  171,  173,  175,  189,  212 

May  destroy  thing  working  public  nuisance 148,  215,  230 

Municipal  trials  require  no  jury 273 

Liability  to  lot  owner  for  railroad  in  street 290 

Void  bonds  of  may  be  cured  by  legislature 313,  345 

Exclusive  grants  by  valid 358,  364 

Exclusive  grants  of  strictly  construed 364 

Must  be  for  public  purpose 370 

MUNN  V.  ILLINOIS. 

Declares  power  of  states  to  fix  rates  of  public  corporations . .  185 


N 
NATION    AND    STATE. 

Relations  of 49,  52,  123,  381,  449 

Nation's  power  over  state  increased  by  amendment, 

9,  12,  59,  103 

Nation  has  power  to  acquire  territory 35,  37 

Nation  has  power  of  eminent  domain 469 

Nation  has  exclusive  power  over  interstate  commerce.  .128,  177 
Nation  has  final  power  to  construe  and  enforce  amendment, 

47,  49,  51,  388 
Nation  not  restrained  by  Fourteenth  Amendment. .  .46,  108,  130 

Nation  has  police  power  for  its  purposes 179 

Power  of  congress  to  enforce  amendment 84,  116,  128,  449 

Nation   has   power   to   enforce   amendment  by   appeal   from 

state  to  Supreme  Court 420 

And  by  habeas  corpus 432 

And  bv  removarl  from  state  to  federal  court 425 


548  INDEX. 

Page. 
NATURALIZATION. 

Who  entitled  to 31,  32 

Only  whites  and  Africans 31,  32 

Women   are 31,  32 

Are  Indians  ? 30 

Gives  federal  citizenship 7 

And  gives  state  citizenship  if  party  resident  in  state 7 

Porto  Ricans  may  be  naturalized 33 

Mongolians  can  not  be  naturalized 32 

NATURAL    GAS. 

Waste  may  be  restrained 124,  222 

NEW   LAWS. 

Do    not   violate   amendment 144,  320 

NEW    TRIALS. 

Number  may  be  limited 273 

Legislature  can  not  grant 297 

NON-RESIDENT. 

No  personal  judgment  against  by  publication 247 

May  be  taxed  on  investments  in  state .302 

NOTICE. 

Necessity  of  in  legal  proceedings 244,  263 

In  assessment  for   improvements 164 

Not  in  taxation 150 

Personal  not  necessary  in  in  rem  proceedings 246,  251,  257 

NUISANCE,    PUBLIC. 

May  be  abated  without  jury 147 

Question  whether  a  nuisance,  a  judicial  one 174,  212 

Must  be  in   fact  a  nuisance 174 

Equity  has  jurisdiction  to  restrain  or  abate 147.  230 

Thing  creating  may  be  destroyed , .  148,  215,  230 

City  may  declare  things  to  be  a  nuisance 213 


O 

OFFICE,    PUBLIC. 

Not  private  property 119,  165 

Removal  from  in  mode  fixed  by  state,  valid 165 

Removal  from  does  not  require  jury 165 

State  only  can  settle  title  to  its  offices 120 

Salary  of  federal,  not  taxable  by  states 159 

Salary  of  state,  not  taxable  by  nation 159 


I\DEX.  549 

Page. 
OFFICERS. 

Habeas  corpus  from  federal  court  for  federal  officer  in  cus- 
tody of  state 439 

But  not  from  state  for  one  in  federal  custody 439 

OLEOMARGARINE. 

What  is 218,  220 

Legitimate  article  of  interstate  commerce 218,  220 

How  far  state  may  regulate  manufacture  or  sale 218,  220 

OPITM    SMOKING. 

Prohibition   of  by   state 227 

OSTEOPATHY. 

Practice  of 239 

OVERRULED    STATE    DECISIONS. 

Effect  of  in  federal  courts 407,  411 

Stare  decisis 409,  412 


P 

PARADES,    PUBLIC. 

May  be  prohibited 81 

PARTITION. 

An  in  rem  proceeding 252,  257 

PASSES,    FREE. 

Railroads  can  not  be  compelled  by  state  to  give 241 

I'  \-KNGERS,    INTERSTATE. 

No  tax  on  by  state 159 

PASSENGERS. 

Statute  for  injury  to  by  railroads  valid 179 

PATENTED  ARTICLES. 

Reflation  of  sale  of  by  state 234 

Monopoly  in.  valid  by  Constitution 361 

PAUPERS    AND    CRIMINALS. 

State  may  exclude 176 

PERSONS  PROTECTED  BY  AMENDMENT. 

Aliens  and  others,  though  not  domiciled  are.  14,  43,  47,  106,  319 

Corporations  are 43,  319 

All  persons  under  jurisdiction  are 14,  43,  106 

PERSONAL    RIGHTS. 

Protected  by  amendment 94,  109,  130,  288 


550  INDEX. 

Page. 
PETROLEUM. 

Illumination  by,  can  not  be  prohibited 310 

PHYSICIANS. 

License  or  certificate  may  be  required  of 81,  239 

POISONS. 

Sale  of  may  be  regulated  or  prohibited 224 

POLICE   POWER. 

Amendment  does  not  affect  state  power  of, 

168,  186,  321,  384,  428 

General  nature  of  power 169,  171,  174,  210,  219,  222 

Can  not  be  denned  in  advance 171 

All  persons,  property  and  business  subject  to.  170,  174,  235,  300 

Is  basis  of  all  criminal  and  civil  law 107,  128,  169,  170 

Is  an  original  power  of  the  states 167,  168 

State  may  under  it  protect  life  and  health  in  mines.  . 209 

Congress  has  power  for  federal  purposes 179 

Municipalities    have    power 147,  211,  213 

Ordinance  of  municipality  must  be  clearly  one  of  police... 212 

Ordinance  must  be  reasonable,  not  arbitrary  act 212,  223 

Delegation  of,   how  far   valid 174,  211,  212 

Property  may  be  destroyed  under 148,  170,  215,  230 

Altered  conditions  enlarge  it 64,  170,  230,  320 

State  can  not  divest  itself 169,  178,  185 

State  can  not  contract  or  bargain  it  away, 

169,  178,  181,  185,  192 
How  far  affected  by  nation's  power  over  interstate  commerce, 

169,  177 

>ower  not  unlimited 171,  174,  223 

Whether  act  is  one  of  police  is  at  first  for  legislature, 

171,  175,  189,  212 

But  final  decision  is  with  courts 171,  173,  175,  189,  212,  223 

Act  must  be  for  public  purpose 172,  212 

Not  void  merely  because  it  injures 170,  321,  324 

»  Under  it  sale  of  liquor  may  be  regulated 79 

State  may  exclude  criminals,  paupers,  lunatics 176 

Contract,  right  of,  subject  to 179,  232 

Gives  state  power  over  rates  of  carriers  and  other  public 

business 181,184,192,342,369 

Sanitary    regulations    valid 213,  223 

As   to  oleomargarine 218 

Privileges   subject  to 235 

Sale  of  certain  things  in  places 292 

Licenses   warranted  by 299 

Classification  under 151,  321,  323,  327,  331 

Must  be  same  for  all  alike  situated.  .  .  .342 


INDEX.  551 

Page. 
PORTO   RICANS. 

May  be  naturalized , 33 

Not  citizens 32,  39 

Children  born  since  acquisition  are 34 

Entitled  to  personal  rights 34,  36,  40,  43 

PORTO  RICAN  TARIFF. 

Is    it   valid? 42 

POSSESSION    PENDENTE    LITE. 

May  be  regulated 234 

PREEMPTION  AND  HOMESTEAD. 

A    federal    right    protected 94 

PRESIDENTIAL  ELECTORS. 

How  appointed 73,  74 

PRETENSE  JURISDICTION. 

Not  good  in  federal  courts 424 

PRICES. 

Agreements  to  control,  unlawful, 

82,  130,  134,  136,  217,  351,  371 

PRIVATE  BUSINESS. 

Can  not  be  regulated  by  state 181,  184,  200,  320,  334 

Can  it  be  limited  in  place  or  time? 292,  310,  331 

PRIVIES. 

May  be  regulated  by  municipalities 229 

PRIVILEGES   AND   IMMUNITIES. 

Federal  and  state  different 56,  69 

No  new  ones  given  by  amendment 47 

Only  federal  protected  by  amendment 56,  66  , 

What  are? 56,  58,  62,  64,  66  1 

Supreme  Court  refuses  to  define  them  in  advance 46" 

State  must  not  abridge  federal 7 

To  vote  or  practice  law  not  a  privilege 73,  81 

Are  subject  to  police  power 235 

Privilege  clause  not  necessary 62,  96 

PROCEDURE,    STATE. 

Regulated  exclusively  by  state, 

147,  273,  282,  289,  292,  294,  311,  343,  468 
But  state  must  give  some  remedy  for  rights 282,  293,  295 


552  INDEX. 

Page. 
PROCESS. 

Service  necessary  for  personal  judgment 244,  248,  263 

Service  out  of  state,  effect  of 248,  265 

Service  on  one  partner 256 

Judicial,  not  in  every  case  required 146,  148,  157 

PROPERTY. 

Protected  by  amendment 7,  113,  118,  358 

What  is 118,  358 

Title  governed  by  state  law 179,  245,  395 

State  decisions  govern  title  to 128,  179,  395 

Federal    court   say,    what    is 388 

Subject  to  police  regulation 170,  174,  369 

Exclusive  grants  and  charters  are 358 

May  be  destroyed  to  abate  nuisance 148,  170,  215 

Public  office  is  not  private  property 119,  165 

None  in  wild  animals 125 

Not  to  be  taken  for  public  use  without  pay 163,  313,  466 

Can  be  taken  only  for  public  use 306,  310 

Transfer  governed  by  state  law 128,  179 

Use  of  on  certain  streets 351 

Franchises  are  property 359 

PROSTITUTES. 

Regulation  of 358 

PUBLIC  OFFICE. 

Not  private  property 119,  165 

Removal   from   without  jury 165 

State  regulates   removal 165 

Salary  of  state  or  federal  not  taxable 159 

PUBLICATION. 

No  personal  judgment  on 244,  247 

Sufficient  under  statute  in  certain  cases 254 

Statute  must  be  complied  with 254 

Good  in  ejectment,  divorce,  or  other  in  rem  cases 252,  257 

PUNISHMENT. 

Additional  on  second  conviction,  valid .  .280 


Q 

QUARANTINE. 

Regulations  for  are  lawful 228 


INDEX.  553 

R 

Page. 
RAGS,    OLD. 

Storage  of,  may  be  regulated 213 

RAILROADS. 

Rates  of  may  be  fixed  by  state 181,  184,  190,  369 

Also   rates   of   other    corporations 187,  193,  199 

Act  must  not  render  railroad  worthless  to  owners.  190,  196,  241 

Must  allow  fair  return  for  investment 190,  198 

Must  not  divest  company  of  control 195 

Legislature  may  judge  of  fairness  of  rates 196 

But  must  not  make  rates  conclusive 194 

Exemption  in  charter  from  state  control ....  185,   188,  192, 

State  may  empower  a  board  to  fix  rates 

Must  serve  all  alike 188 

Compelled  to  do  so  by  mandamus 188 

Taxation  of  rolling  stock :„  304,  349 

Act  for  liability  for  accidents  valid 179,  180,  343, 

Act  requiring  them  to  pay  state  commission  valid 180 

State  may  regulate  speed 229 

Terminals,  use  of  by  others .Sy^-^ .233 

Compulsory    fencing   by \s^' 21*'  325 

Stopping  trains  at  points,  act  for  valid.  Y. 218" 

Grade  crossings,  power  of  state  over 221 

Steam  heating  may  be  required 304 

Act  making  liable  for  acts  of  fellow  servants,  valid. . .  .180,  325 

Liability  for  fires,  act  valid 180,  335 

Wages,  act  to  compel  payment  valid 180,  206,  215,  356 

In  streets,  power  of  city  over 229 

Free  pass,  legislature  can  not  require 241 

Act  against  requiring  employees  to  waive  damages 288 

Separate  cars  for  colored  people 87,  356 

Exemption  from  taxation 388 

Excluding  from  act  to  prevent  fines,  void 335 

RAILROAD  CROSSINGS. 

State  may  compel  removal  of  grade  crossings 221 

RATES. 

By  railroads  and  other  corporations  may  be  regulated, 

181,  184,  189,  342,  399 

Board   may   fix 198 

Must  be  reasonable  and  give  SQme  profit 190,  198 

RECOGNIZANCE. 

Act  waiving  signature,   valid    +. 291 


554  INDEX. 

Page. 
REGISTRY  OF  VOTERS. 

Statute  for,  valid 233 

REGISTRATION  OF  LAND  TITLES. 

Act    requiring,    valid 259 

Torren's  System  of,  valid 260 

REGRATING,  FORESTALLING,  ENGROSSING. 

Are  contrary  to  law 131 

REMEDY. 

Is  for  state  to  prescribe.  .147,  273,  282,  289,  292,  311,  343,  468 
May    be    changed 292,  294,  468 

REMOVAL. 

From  state  to  federal  court 425 

Means  of  enforcing  amendment 425 

Must  be  federal  question   for 425 

Amount    required    for 425 

State  judgment  void  after  petition  for 426 

Must  remand   prisoner   to   state,   when 427 

RENT. 

Distress  for,   is   due  process 161 

REPEAL  OF  CHARTER. 

When  may  be  made 364 

REPUTATION. 

Is  it  protected  by  amendment? 119 

RESTRAINT  OF  TRADE. 

Agreements  and  combinations  for,   unlawful 

82,  130,  136,  217,  351,  371 

RIGHT  OF  CONTRACT,  LABOR  AND  PROPERTY. 

Are  protected  by  amendment 7,  109,  343 

ROADS. 

Taking  land   for 313 

ROLLING  STOCK. 

Taxation  of . .  .  .304 


S 

SALARY. 

No  state  tax  on  federal,  nor  federal  on  state 159 

SALOONS. 

Screens   before   windows 213 

May  be  regulated^ 213 


INDEX.  555 

Page 
SAM  TAR  V  R EGULATI ONS. 

Competent  for  municipality  to  make 213,  231 

SCHOOLS. 

Separate    for    colored    children 89 

SCREENING   COAL  ACTS. 

Are  they  valid 203,,  206,  208 

S(   RIP. 

Payment  of  wages 201,  203,  205,  207,  208,  209 

SK>  KSSION    FROM    UNION. 

Right  of 49 

Denied  by  Civil  War 52,  103 

SECOND  CONVICTION. 

Act  for  greater  punishment,  valid 280,  355 

SECOND    SENTENCE 

After  reversal,  is  valid 231 

SECURITIES. 

No  tax  by  state  or  nation  on,  of  each  other 159,  342 

SERVANTS. 

Legislation  to  protect,  valid 180,  209,  220 

Fellow  servants'  act  valid . 180,  325 

Payment  of  in  scrip,  acts  for 201,  205,  207 

Stated  payment  of  wages  required 180,  206,  215,  220 

Enticing  away,  act  against 242 

Preferred  lien  for,  valid 234 

Act  against  employing  Chinese  void 330 

SET-OFF. 

Must  there  be  notice  of? 250 

SEWERS. 

Charge  for  use  of  public,  valid 232 

SHAREHOLDERS,  NON-RESIDENT. 

Suit  to  settle  rights  of  on  publication  valid 271 

SLAUGHTER  HOUSES. 

Regulation  of 217 

SLAUGHTER  HOUSE  CASES. 

Principles  of 82 

SLAVES. 

Had  no  civil  rights 117 

Amendment  conferred  such  rights 103 

Return  of  fugitive 450 


556  INDEX. 

Page. 
SOLITARY  CONFINEMENT. 

Of  condemned  persons  lawful 93,  243 

SPANIARDS   IN   PHILIPPINE   ISLANDS. 

Are   citizens 39 

SPECIFIC  PERFORMANCE. 

An  in  rem  proceeding 263 

SPEECHES. 

In  streets  may  be  prohibited 166 

STARE   DECISIS. 

Doctrine  of 409,  411 

STATE  DECISIONS. 

Generally  followed  in   federal   courts  on   state  law, 

179,  245,  393,  395,  405,  416,  428 

STATE  GOVERNMENTS. 

Independence  of 123 

Powers  limited  by  amendment 9,  11,  59,  103,  384 

Have  sole  jurisdiction  over  crime  against  state 428 

STATE  RIGHTS. 

Advocates    of,    their    views 8,  10,  49,  52 

Relation  of  nation  and   states 49,  53,  123,  381,  449 

STATUTE   OF   LIMITATIONS. 

Are  valid 274 

Extending  and  shortening  time 274,  276 

Act  as  tax  deeds 313 

Appeal    from   railroad   board 357 

STORE. 

Act  against  corporations  owning,  void 208 

STREAMS. 

Polution  of,  may  be  prohibited. 221 

STREET. 

Obstruction  of  ordinance  against,  valid 166,  229 

STRIKES. 

Injunction  against 471 

SUFFRAGE. 

Amendment  does  not  confer  or  affect 18,  73 

Is  left  to  states 73 

Women  not  entitled  to IB,  74 

Citizenship  does  not  confer 18,  47,  73 


557 

Page. 

S  U  F  FR  AGE— Continued. 

For  congressmen 73,  75 

For  presidential  electors ; 73 

Nation  has  no  voters 73,  75 

Suffrage  in  territories  fixed  by  congress 78 

Colored  voters 73,  76 

Federal   protection  of   right 78 

State  must  not  deny  merely  for  color 73,  76 

May  deny  on  ground  other  than  race  or  color 77 

SUNDAY  LAWS. 

Validity  of 214,  218 

SUPREME  COURT. 

Appeal  to  is  means  of  enforcing  amendment 420 

Final  arbiter  of  amendment 47,  49,  51,  389 

Writ  of  error  is  process  of  appeal  in  both  equity  and  law 

cases 424 

Case  must  involve  rights  under  amendment 52,  404,  420 

And  state  decision  must  be  against   right   claimed   under 

amendment 421 

Federal  question  must  be  real,  not  pretense 423 

Federal  question  must  be  raised  by  record  in  state  court 423 

Federal  question  must  be  controlling 404,  422 

Constitutional  question  dispenses  with  amount  for  appeal 422 

Jurisdiction  for  appeal  from  state  court 420 

Final  arbiter  on  all  questions  of  federal  constitution  or  law, 

47,  49,  51,  389 
No  jurisdiction  for  mere  error  of  state  court  on  state  laws, 

142,  282,  348,  421,  429 

Decides  finally  what  are  contracts  and  property 388,  399 

Appeal  from  state  criminal  decision  if  amendment  involved.  .428 

Follows  state  courts  as  to  state  law 179,  395,  405 

Follows  state  court  as  to  title  to  land  and  property, 

179,  245,  395 

Overruled   state  cases,   effect   of   in 407,  411 

Mandamus  to  state  court  from 445 

Its   vast   responsibility 59 

Its  conservatism  in  the  past 13,  60 

Fate  of  Union  hangs  upon  it 13,  60 

SURETYSHIP. 

Charge  against  estate  for 333 

SURVEY  OF  LAND. 

May  be  made  for  railroad  without  compensation 162 

SWAMP  LAND. 

Drainage  of,  may  be  enforced 287 


558  INDEX. 


Page. 
TARIFF. 

As  to  newly  acquired  territory 42 

Porto  Rican  tariff  act 42 

TAXATION,  STATES'  POWER. 

Not  impaired  by  amendment 149,  298 

Breadth   of 148 

Must  be  only  for  public  purposes 160 

Classification  of   subjects  lawful..  151,   323,   333,   337,  341,  352 

State  fixes  mode  of 148,  149,  151 

Extent  of,  is  left  to  states 149 

Taxation  on  licenses  valid 151,  298 

No  tax  on  federal  security,  property  or  salary 159,  342 

No  federal  tax  on  state  bonds,  salary  or  property 159 

Power  of,  may  be  conferred  on  towns  and  counties.  . .  .298,  354 

No  tax  on  interstate  passengers  or  freight 159 

No  tax  on  exports  or  imports  by  state 159 

Inheritance  tax  valid 340 

Assessment  without  hearing  is  due  process -.  . . .  .148,  155 

Uniformity  of 351,  353 

On  railroad  rolling  stock 304,     349 

On  telegraph  and  express  companies 305,  332,  353 

Only  on  property  within  state 158,  303 

Investments   of  nonresidents,   subject  to 302 

Usual  modes  of,  are  due  process 146,  155 

Different  tax  on  different  subjects 151,  323,  333,  337 

State  may  exempt  property  from 336,  353,  366 

State  can  not  exempt  contrary  to  its  constitution 368 

State   can   not   discriminate   unfairly   between    persons    in 

taxing 352 

Entire  equality  impracticable 323,  324 

Must  apply  to  all  alike  situated 323,  339,  351 

Judicial  process  not  necessary 145,  148,  150,  27tf 

Forfeiture  of  property  for  taxes  valid 154,  260,  287 

Each  government  has  power  of 1 60 

Validity  of,  a  judicial  question 161 

Act  curing  irregular  taxation 242,  354 

A  board  may  assess  railroads , 279 

Bank  stock  taxable  where  bank  is 304 

Deduction    of    debts 336 

On  corporations 340 

On    immigrant   agents 357 

Charter  may  exempt  from 360 

But  exemption  must  be  clear  and  amount  to  contract 368 

On  incomes.  .  .  .  378" 


1XDEX.  559 

TAXATION,  MUNICIPAL. 

State  may  confer  the  power 299,  354 

Municipality  can  tax  only  what  statute  allows 299,  354 

Municipality  may  exempt  from,  if  statute  allows 299,  354 

TAXES. 

Land  forfeiture  for,  is  due  process 154,  260,  287 

Imprisonment  for,  is  due  process 154,  157 

Distress  for,  is  due  process 145,  155 

Action  not  necessary  to  collect 146,  155 

Exemption  from,   how  far  valid 336,  366 

Penalty  on  corporations  and  others  for,  valid 154,  287,  298 

None  on  interstate  commerce 159 

None  on  federal  bonds,  salary  or  property 159,  342 

None  on  exports  or  imports 159 

On  investments  of  nonresidents 302 

Summary  proceedings  for,  valid 158 

On  licenses  is  a  tax 151,  298 

Deduction   of   debts  from 336 

On  incomes 378 

TAYLOR  VS.  BECKHAM. 

See  KENTUCKY  GOVERNORSHIP  CASE. 

TERRITORY. 

Nation  has  power  to  acquire 35,  37 

Congress  power  to  govern 36,  39,  78 

Must  be  free  government  in 34,  40,  43 

Congress  defines  suffrage  in  territories 78 

TICKET  BROKERAGE. 

Act  against,  held  void 281 

TITLE  TO  PROPERTY. 

Tested  by  state  law  and  decisions 179,  246,  395 

TOLLS. 

Are  unequal,  valid 351 

TORRENS  SYSTEM. 

Registration  of  land  titles 200 

TOWNS. 

See  MUNICIPAL  CORPORATIONS. 

TRADING  STAMPS. 

Act  against. 309 


560 

Page. 
TRIAL. 

Mere  error  in  on  state  law,  not  contrary  to  due  process, 

142,   282,   348,  421,  429 

Without  indictment  on  information »144 

Unanimous  verdict  may  be  dispensed  with 288 

TRUCK  STORES. 

Is  act  against,  valid? 202,  203,  204,  208 

TRUSTS  AND  MONOPOLIES. 

Discussion  of 82,  129,  130,  181,  185,  217,  351,  371,  476 


U 

UNION. 

Powers  of  increased  by  Amendment  Fourteen. ..  .9,  11,  59,  103 

Relation  of  to  states 49,  52,  123,  381,  449 

See  title  NATION  AND  STATES. 

USE  OF  PROPERTY. 

Ordinance  against  in   localities,   void 292,  310,  331 

USURY  LAWS. 

Are    valid 233,  346 

By  building  associations 345 

Act  waiving  in  city  bonds,  valid 313 


V 

VACCINATION. 

May  be  required  to  attend  school 94,  225 

Compulsory  by  statute,  valid 94,  225 

VAGRANTS. 

Control  over 280,  309 

VALUE  IN  CONTROVERSY. 

Amount  required  for  jurisdiction  in  U.  S.  Circuit  Courts 

402,  404 

None  for  appeal  to  Supreme  Court  on  constitutional  ques- 
tion  422 

VENTILATION  OF  MINES. 

Statutes   compelling   are   valid 209 

VERDICT. 

Unanimous,  may  be  dispensed  with  by  state 288 


INDEX.  561 

Page. 
VIADUCT. 

Compulsory  repair  of  by  one  company,  though  used  by  an- 
other  336 

VIRGINIA  AND  KENTUCKY  RESOLUTIONS. 

Referred  to 49 

VOID  CONTRACTS. 

Act  to  validate 278,  313,  345 

Procedure,  can  not  be  cured 283 

VOTERS. 

Amendment  does  not  make 73 

Women  not 18,  74 

Colored  are  under  Fifteenth  Amendment 76 

Federal  protection  of 78,  462 

State  says  who  are 73 

No  federal  voters,  in  states 75 

In  territories,  congress  prescribes 78 

Registry  may  be  required 233 


W       . 

WAGERING  CONTRACTS. 

Are  void 232 

Legislation  against,  valid 232 

WAGES. 

Preferred  lien  for,  valid 234,  336 

Act  for  stated  payment  of 180,  206,  208,  215,  348 

Act  against  payment  of  in  scrip 201,  204,  207 

Payment  of  in  advance 356 

WAIVER  OF  JURY. 

May  be  in  criminal  cases 311 

On  confession  in  capital  case 161 

WATER. 

Taking  without  pay,  illegal 241 

WATERS. 

Polution  of  may  be  prohibited  by  state 221 

WATER  CLOSETS. 

May  be  regulated  by  municipalities 229 

WATER  RENT. 

Lien  for , 221 

WATERWORKS. 

Citv  mav  fix  rates. .  .  .193 


562  INDEX. 

Page. 
WEAPONS,  DEADLY. 

Laws  against  carrying,  valid 92,  290 

WEBSTER,  DANIEL. 

His  definition  of  due  process 140 

Declaration  as  to  Supreme  Court  of  United  States 60 

WHITES  AND  AFRICANS. 

They  only  can  be  naturalized 31,  32 

WILLS. 

Governed  by  state  law 128,  179 

Probate  of,  an  in  rem  proceeding 252 

Probate  of,  binds  world 252 

WITNESS. 

Accused  as,  examination  of 311 

WOMEN. 

Not  made  voters  by  Fourteenth  Amendment 18,  74 

Not  made  jurors  by  Fourteenth  Amendment 356 

Are  citizens 7,   18,   19 

Not  entitled  to  practice  law  by  Amendment 81 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

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on  the  date  to  which  renewed. 
Renewed  booksare  subject  to  immediate  recall. 


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